Recent Amicus Briefs


	Print or Email This Page For More Information: Jack King, Public Affairs Director (202) 872-8600 ext. 228, media@nacdl.org *Amicus Curiae* Committee Mission Statement and Guidelines Recent Amicus Briefs 2010 2009 2008 2007 2006 2005 2004 2003 2002 2010 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. 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 � 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. 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. 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. 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. 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. 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. 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. 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. 2009 Al-Marri v. Spagone , U.S. Sup. Ct., No. 08-368, opinion below Al-Marri v. Pucciarelli, 534 F.3d 213 (4th Cir. 2008). Amicus curiae brief of the National Association of Criminal Defense Lawyers in Support of Petitioner, filed 1/28/09. Argument: The government’s purported authority to indefinitely detain a lawful U.S. resident as an “enemy combatant” violates the Sixth Amendment and disrupts the criminal justice system and the courts. The Constitution requires full Sixth Amendment due process for all U.S. residents, especially in cases involving high security detainees and serious threats to national security. Authors: Julia E. McEvoy, Christian G. Vergonis, and Katherine E. Stern, Jones Day. Berghuis v. Smith, U.S. Sup. Ct., No. 08-1402, case below, 543 F.3d 326 (6th Cir. 2008), brief filed 12/28/09, argument 01/20/10. Sixth Amendment---Representative Juries---Stare Decisis. Amici curiae brief of the National Association of Criminal Defense Lawyers, the American Civil Liberties Union and The National Jury Project in support of Respondent. Argument: The Sixth Amendment right to an impartial jury requires that the jury be representative of the community—that it “must be drawn from a fair cross-section of the community….” as iterated in the Supreme Court’s rulings in Taylor v. Louisiana and Duren v. Missouri. Author: Clifford M. Sloan, Washington, DC. Bloate v. United States, U.S. Sup. Ct., No. 08-728, case below, 534 F.3d 893 (8th Cir. 2008), brief filed 6/25/09. Speedy Trial Act---Pre-Trial Motions. Amicus curiae brief of the National Association of Criminal Defense Lawyers in support of Petitioner. Argument: The Speedy Trial Act advances the public’s interest in an efficient and fair criminal justice system, as Congress intended, and the Court should reject any expansion of the Act’s automatic exclusions that threatens achievement of the important purposes and significant benefits of the Act. Author: Ketanji Brown Jackson, Morrison & Foerster LLP, Washington, DC. Briscoe v. Virginia, U.S. Sup. Ct., No. 07-11191, case below, 657 S.E.2d 113 (Va. 2008), brief filed 9/09. Lab Reports---Hearsay---Confrontation Clause. Amici curiae brief of the Public Defender Service for the District of Columbia and the National Association of Criminal Defense Lawyers in support of Petitioner. Argument: Virginia’s statutory subpoena alternative is not justified by a “sky-will-otherwise-fall” rationale requiring forensic lab technicians and other prosecution experts to testify in open court, as the Supreme Court specified last term in Melendez-Diaz v. Massachusetts,129 S.Ct. 2527 (2009). The requirement that the defendant call a prosecution witness, rather than the state, is no substitute for the Sixth Amendment right to confrontation, because the Confrontation Clause procedure promotes justice in the manner in which it allocates burdens to the prosecution and opportunities to the defense. In addition, the statutory subpoena alternative is an entirely different and less effective means of adversarial testing that diminishes accuracy and reliability in the criminal justice system. Author: Timothy P. O’Toole, Miller & Chevalier, Washington, DC. Carr v. United States, U.S. Sup. Ct., No. 08-1301, decision below 551 F.3d 578 (7th Cir. 2008), brief filed 12/10/09, argument 2/24/10. Adam Walsh Act/SORNA—Sex Offenders—Ex Post Facto. Amicus curiae brief of the National Association of Criminal Defense Lawyers. Argument: The federal Sex Offender Registration and Notification Act (SORNA) imposes criminal penalties of up to ten years imprisonment on anyone who “is required to register … travels in interstate or foreign commerce … and knowingly fails to register or update [sex offender] registration.” In 2007, a federal regulation made the registration requirements retroactive. The defendant was released from prison in Alabama in 2004 and registered as a sex offender; a few months later he moved to Indiana, but failed to register as a sex offender in that state. The brief argues that the retroactive application of SORNA’s criminal provisions raises constitutional concerns under the Ex Post Facto Clause and the Commerce Clause of the U.S. Constitution and that construing SORNA to avoid those concerns would not undermine the law’s objective of reducing recidivism of registered sex offenders. Authors: Jonathan L. Marcus, et al., Covington & Burling, Washington, DC. Carachuri-Rosendo v. Holder, U.S. Sup. Ct., No. 09-60, decision below 570 F.3d 263 (5th Cir. 2009), brief filed 08/17/09. Immigration and Deportation – “Aggravated Felony” – Misdemeanor Drug Possession. Amicus curiae brief of the National Association of Criminal Defense Lawyers, the National Legal Aid and Defender Association, the National Association of Federal Defenders, the Immigrant Defense Project, the Immigrant Legal Resource Center, the National Immigrant Justice Center, and the National Immigration Project of the National Lawyers Guild in support of Petitioner. Argument: The perfunctory processing of low-level (misdemeanor) drug charges is rooted in the understanding that ordinarily defendants face less serious direct and collateral consequences. Essentially duped into believing that these charges were resolved with a quick plea, many non-citizens, including permanent legal residents, subsequently find themselves subject to deportation, despite the fact that they were charged with the most minor drug possession offenses that exist within state penal codes. The issue before the Court is whether a person convicted under state law for simple drug possession (a federal misdemeanor) has been “convicted” of a deportable “aggravated felony” where there was no charge or finding of a prior conviction in his prosecution for possession. Authors: Jim Walden and Richard A. Bierschbach, Gibson, Dunn & Crutcher LLP, New York. Conrad M. Black v. U.S., U.S. Sup. Ct., No. 08-876, case below, 530 F.3d 596 (7th Cir. 2008), brief filed 8/6/09. Due Process—Federalism---Honest-Services Fraud---Forfeiture and Preservation of Objections. Amicus curiae brief of the National Association of Criminal Defense Lawyers and the New York Council of Defense Lawyers in support of petitioners. Argument: Section 1346 violates due process requirements by (i) not providing fair warning, at the time of the offense, of what conduct is prohibited, and (ii) failing to be clear and specific enough to inform the public of precisely what conduct is prohibited and cabining law enforcement’s discretion within reasonable limits. In addition, interpretation of Section 1346 to impose a federal-law duty to provide “honest services” irrespective of state law would invite federal courts to create a federal common law of honest dealing, an approach which has been anathema for two centuries. The Seventh Circuit’s forfeiture rule would unfairly compel defendants either to accept prejudicial interrogatories or to forfeit objections to prejudicial instructional error. Authors: Jonathan L. Marcus, Roger A. Ford, James McCall Smith, Convington & Burling LLP, Washington, DC. District Attorney’s Office v. Osborne, U.S. Sup. Ct., No. 08-6, case below, 521 F.3d 1118 (9th Cir. 2008), brief filed 2/2/09. Civil Rights—Due Process—Post-conviction DNA testing. Amicus curiae brief of the American Civil Liberties Union, Rutherford Institute and National Association of Criminal Defense Lawyers in support of respondent. Argument: Due process prohibits detention of a person who proves he is actually innocent of a crime, and the Due Process Clause establishes a post-conviction right to DNA evidence to prove an actual innocence claim. Authors: Walter Dellinger, Irving L. Gornstein, Shannon M. Pazur and Kathryn E. Tarbert, O’Melveney & Myers LLP, Washington, DC. Echols v. Arkansas, Supreme Court of Arkansas, CR No. 08-1493, on appeal from Craighead County Circuit Court on Change of Venue from Crittenden County Circuit Court (unreported), Circuit Court No. CR 93-450a (Hon. David Burnett, Judge), brief filed 9/17/09. Capital Case---Juveniles---Mentally Impaired---False Confessions. Amicus curiae brief of the Center on Wrongful Convictions of Youth and the National Association of Criminal Defense Lawyers in support of appellant. Argument: Due to the potent nature of confession evidence, the Misskelley confession strongly influenced the jury’s verdict, even though it was not admitted at trial. Standard police interrogation tactics have been shown to induce false confessions, particularly in juveniles and the mentally impaired. Even while the Misskelley confession strongly influenced the jury’s decision to convict, it bears all the hallmarks of a false confession. Authors: Laura H. Niridir and Steven A. Drizin, Center on Wrongful Convictions of Youth at Northwestern University School of Law; Barbara Bergman, Amicus Committee Co-Chair, National Association of Criminal Defense Lawyers. Florida v. Powell, U.S. Sup. Ct., No. 08-1175, case below, 998 So.2d 531 (Fla. 2008), argument 12/07/2009. Miranda warning—Right to counsel during questioning. Amicus curiae brief of the National Association of Criminal Defense Lawyers and the National Association of Federal Defenders. Argument: The Tampa, Fla., police department’s imprecise Miranda�-type warning that advises “You have the right to talk to a lawyer before answering any of our questions” but does not explicitly advise of the right to have a lawyer present during questioning comport with Miranda v. Arizona? Brief argues that any form warning that any form warning that systematically omits mention of a core Fifth Amendment right does not pass constitutional muster. Authors: Linda T. Coverly, Winston & Strawn, Chicago, and Gene C. Schaerr and Geoffrey P. Eaton, Winston & Strawn, Washington, DC. Graham v. Florida; Sullivan v. Florida,U.S. Sup. Ct., Nos. 08-7412 & 08-7621, cases below, 982 So.2d 43 (Fla.App.1 Dist. 2008) & 987 So.2d 83, unpublished (Fla.App.1 Dist. 2008), brief filed 7/23/09. Attorney/Child-Client Relationship---Juveniles---Life Without Parole---Sentencing---Eighth Amendment. Amicus curiaebrief of the NAACP Legal Defense & Educational Fund, Inc., Charles Hamilton Houston Institute for Race & Justice, and National Association of Criminal Defense Lawyers in support of petitioners. Argument: Individuals younger than age 18 at the time of the offense should not be subject to life without parole sentences, as such sentences violate the Eighth Amendment. Authors: Vincent M. Southerland, John Payton, Debo P. Adegbile, Christina Swarns, and Jin Hee Lee, NAACP Legal Defense and Educational Fund, Inc.; Charles J. Ogletree, Jr. and Robert J. Smith, Charles Hamilton Houston Institute for Race & Justice; Jeffrey L. Fisher, National Association of Criminal Defense Lawyers. Johnson v. United States, U.S. Sup. Ct., No. 08-6925, case below, 528 F.3d 1318 (11th Cir. 2008), brief filed 6/3/09. Rule of Lenity---Armed Career Criminal Act (ACCA)---Physical Force---Violent Felony. Amicus curiae brief of the National Association of Criminal Defense Lawyers in support of Petitioner. Argument: Under the Rule of Lenity, ambiguities in the prohibitions imposed by criminal statutes are construed in favor of the defendant to foster fairness and uniformity in the administration of the criminal justice system. The Rule of Lenity precludes application of the physical force element of the ACCA to the conduct – battery involving de minimis physical conduct – in this case. Authors: Michael C. Small, Patricia A. Millet, and Joel R. Meyer, Akin Gump Strauss Hauer & Feld LLP, Los Angeles, CA. Kansas v. Ventris, U.S. Sup. Ct., No. 07-1356, opinion below, 176 P.3d 920 (Kan. 2008), decided 4/29/09. Amicus curiae brief of the National Association of Criminal Defense Lawyers in support of Respondent, cited in both the majority and dissenting opinions, arguing that jailhouse snitch testimony is too unreliable to be admitted even for impeachment purposes, as snitches have a strong incentive to lie. Held: Respondent’s voluntary statement to jailhouse informant planted in his cell by law enforcement, concededly in violation of the Sixth Amendment, was admissible to impeach his inconsistent testimony at trial. Authors: Amy Howe and Kevin K. Russell, Howe & Russell P.C., Washington, D.C.; Thomas C. Goldstein, Akin, Gump, Strauss, Hauer & Feld, LLP, Washington, D.C.; and Pamela S. Karlan and Jeffrey L. Fisher, Stanford Law School Supreme Court Litigation Clinic, Stanford, CA. Kiyemba v. Obama, (Uighur Case), U.S. Sup. Ct., No. 08-1234, opinion below Kiyemba v. Obama, 555 F.3d 1022 (D.C. Cir. 2009); brief filed 12/11/09. Habeas corpus—Separation of Powers. Amicus curiae brief of the Association of the Bar of the City of New York, the Brennan Center for Justice at New York University School of Law, the Constitution Project, People for the American Way Foundation, the Rutherford Institute, and the National Association of Criminal Defense Lawyers in support of Petitioners. Question Presented: Whether a federal court exercising its habeas jurisdiction, as confirmed by Boumediene v. Bush, 553 U.S. __, 128 S. Ct. 2229 (2008), has no power to order the release of prisoners held by the Executive for seven years in the Guant�namo prison, where the Executive detention is indefinite and without authorization in law, and release in the continental United States is the only possible effective remedy. Argument: The court of appeals’ ruling undermines the “judicial Power” conferred by Article III of the Constitution and the role of an independent judiciary in our constitutional system of separated powers. Authors: Sidney S. Rosdeitcher, Association of the Bar of the City of New York; Alex Young K. Oh, Philip G. Barber, and David G. Clunie, Washington, DC; Elizabeth Goitein and Emily Berman, and Aziz Huq, Brennan Center for Justice; Sharon Bradford Franklin, Constitution Project; Margery F. Baker and Deborah Liu, People for the American Way Foundation; John W. Whitehead, Rutherford Institute; Malia N. Brink, National Association of Criminal Defense Lawyers. DC Circuit brief below. McDaniel v. Brown, U.S. Sup. Ct., No. 08-559, case below, 525 F.3d 787 (9th Cir. 2008), brief filed 7/24/09. DNA Evidence—Due Process—Federal Habeas Review. Amicus curiae brief of the National Association of Criminal Defense Lawyers in support of respondent. Argument: False or misleading statistical presentation of DNA evidence is a serious problem requiring rigorous safeguards. The Ninth Circuit correctly held that the introduction of false DNA testimony at respondent’s trial violated the due process clause and mandates a new trial. Authors: Jonathan Hacker, Walter Dellinger, and Sara Zdeb, O’Melveny & Myers LLP, Washington, DC. Maryland v. Shatzer, U.S. Sup. Ct., No. 08-680, case below 954 A.2d 1118 (Md. 2008), cert. granted 1/26/09, brief filed 6/5/09. Interrogation—Right to counsel. Amicus curiae brief of the National Association of Criminal Defense Lawyers. Argument: The Court should not create exceptions to the bright line rule of Arizona v. Edwards, 451 U.S. 477 (1981), let alone exceptions that would permit police from the same jurisdiction to reinterrogate a continuously imprisoned suspect about the very same offense as to which he had originally invoked his right to counsel. Authors: Daniel Meron, Lathan & Watkins LLP, Washington, D.C. and Colleen C. Smith, Lathan & Watkins LLP, San Diego, CA. Nacchio v. United States, U.S. Sup. Ct., No. 08-1172, case below, 555 F.3d 1234 (10th Cir. 2009), brief filed 4/2209. Amicus curiae brief of the National Association of Criminal Defense Lawyers and the New York Council of Defense Lawyers in support of granting the petition. In the case below, first argued in 2008 and reheard en banc by the 10th Circuit court of appeals, the defendant and amici argued that the trial court judge improperly excluded a defense expert witness who would have explained the former executive’s trading of Qwest stock to the jury. Authors: Andrew H. Schapiro and Scott A. Claffee, Mayer Brown LLP, Washington, D.C. 10th Circuit brief below. Nijhawan v. Holder, U.S. Sup. Ct., No. 08-495, decision below 523 F.3d 387 (3d Cir. 2008), brief filed 03/04/09. Fraud—Immigration/Deportation—Aggravated felony. Amicus curiae brief of the National Association of Criminal Defense Lawyers in support of petitioner. Argument: Whether to avoid raising constitutional doubt or to provide fair warning under the rule of lenity, 8 U.S.C. �1101(a)(43)(M)(i) (defining an offense that involves fraud or deceit in which the loss to the victim(s) exceeds $10,000) is a “dual use” statute requiring consistent interpretation in both criminal and immigration law contexts. Authors: Iris E. Bennett, Anjan Choudhury and Michael A. Hoffman, Jenner & Block LLP, Washington, D.C. and David A. Newman, Jenner & Block, New York, NY. Padilla v. Kentucky, U.S. Sup. Ct., No. 08-651, case below 253 S.W.3d 482 (Ky. 2008), cert. granted 2/23/09, brief filed 6/2/09. Ineffective Assistance of Counsel—Immigration—Collateral Consequences of Conviction. Amicus Curiae brief of the National Association of Criminal Defense Lawyers, et al. Argument: The Court should hold that the criminal defense function includes advising the client of every important consequence of a plea, in this case deportation for a non-citizen U.S. resident of 40 years and veteran of the U.S. Army resulting from a plea of guilty for trafficking in marijuana - an offense designated as an "aggravated felony" under the Immigration and Naturalization Act (INA). Accordingly, where, as here, such advice by counsel was not provided, the guilty plea, and conviction based on that plea, should be set aside. Authors: Iris E. Bennett and Matthew Hersh, Jenner & Block LLP, Washington, D.C. People v. Colon, New York Court of Appeals, No. 162, 163, case below 55 A.D.3d 444 (1st Dept. 2008) , filed 9/4/09. Brady—Exculpatory Information—Prosecutorial Conduct—Due Process. Joint amicus curiae brief of the National Association of Criminal Defense Lawyers and the New York State Association of Criminal Defense Lawyers. Argument: The decision of the Appellate Division, First Department should be reversed. Due process requires prosecutors to disclose favorable information – not just evidence – in time for defense counsel to investigate and use it at trial. These opportunities are precluded when the prosecutor withholds the information. Requiring defendant to establish the information’s admissibility for the first time years after conviction is an often impossible task. When information emerges long after trial, courts should assume accuracy and that timely disclosure would have led to admissible or otherwise helpful evidence, and then apply the Vilardi materiality test. Authors: Marc Fernich and Maurice Sercarz of Sercarz & Riopelle LLP in New York, NY and Richard D. Willstatter, Vice Chair of NACDL’s Amicus Curiae Committee and Amicus Curiae Committee Chair for the New York State Association of Criminal Defense Lawyers of White Plains and New York, NY. People v. Weaver, New York Court of Appeals, case below 52 A.D.3d 138 (3rd Dept. 2008). GPS Surveillance—Search and Seizure—Warrant Requirement--Associational Privacy. Joint amicus curiae brief (submitted with motion for leave to file on Feb. 2, 2009) of the National Association of Criminal Defense Lawyers, the New York State Association of Criminal Defense Lawyers, the New York State Defenders Association, the Electronic Frontier Foundation, the American-Arab Anti-Discrimination Committee, the Sikh American Legal Defense and Education Fund, the Council on American-Islamic Relations, and the Union for Reform Judaism. Argument: The decision of the Appellate Division, Third Department should be reversed. To secure both First and Fourth Amendment rights, as well as liberty and privacy rights under New York State Constitution, law enforcement should be required to secure a warrant based on probable cause prior to secretly installing GPS transmitter on a person’s vehicle and undertaking such surveillance. Authors: Susan J. Walsh, Moskowitz, Book & Walsh, LLP, New York, NY; Norman L. Reimer, Exec. Dir., NACDL, Washington, DC; Ivan J. Dominguez, Asst. Dir. Public Affairs & Communications, NACDL, Washington, DC. Pottawattamie Cty. v. McGhee, U.S. Sup. Ct., No. 08-1065, case below, 547 F.3d 922 (8th Cir. 2008), brief filed 9/18/09. Prosecutorial Misconduct---Wrongful Conviction---Absolute Immunity---Qualified Immunity---Section 1983. Amicus curiae brief of the National Association of Criminal Defense Lawyers, the CATO Institute, and the American Civil Liberties Union in support of respondents. Argument: As a matter of policy as well as precedent, absolute immunity should not be extended to shield from civil liability prosecutors who function side by side with police detectives during the investigation of a crime to frame a ‘suspect’ by fabricating ‘evidence’ and then give that ‘evidence’ its intended use by introducing it at a criminal trial. Petitioners do not enjoy qualified immunity for fabricating evidence during the investigative stage merely because they, instead of another prosecutor, presented that evidence at trial. Author: Joel B. Rudin, New York, New York. Price v. Turner, S.C., No. 03-DR-37-472. brief filed 10/29/09. Right to Counsel—Indigents—Child support nonpayment proceedings. Amicus curiae brief of the ACLU Foundation, South Carolina National Office, the Brennan Center for Justice, the National Association of Criminal Defense Lawyers, the National Legal Aid and Defender Association, and the South Carolina Association of Criminal Defense Lawyers in support of appellant Michael Turner. Argument: Because the Sixth Amendment requires that courts appoint counsel for indigent defendants where imprisonment is a possibility, South Carolina family court are required to appoint counsel to represent indigent defendants in family court child support nonpayment proceedings where imprisonment is a possibility. Authors: Stephen J. McConnell and Meghan Rohling Kelly, Dechert LLP, Philadelphia, PA. Skilling v. U.S., U.S. Sup. Ct., No. 08-1394, case below, 554 F.3d 529 (5th Cir. 2009), brief filed 12/09. Honest-Services Fraud---Due Process--Vagueness---Pretrial Publicity--Voir Dire. Amicus curiae brief of the National Association of Criminal Defense Lawyers in support of petitioner and urging reversal. Argument: The theft-of-honest-services statute�18 U.S.C. �1346, is void for vagueness; also, the presumption of prejudice that arises from intense community hostility and pervasive adverse publicity cannot be rebutted through voir dire. Author: John D. Cline, Jones Day, San Francisco, CA. Here is a link to NACDL’s *amicus* brief in support of the *Skilling* petition for writ of certiorari. United States v. Comstock, U.S. Sup. Ct., No. 08-1224, opinion below, 551 F.3d 274 (4th Cir. 2009), argument 01/12/2010. Federal civil commitment statute (Adam Walsh Act)—Due Process—Vagueness. Amicus curiae brief of the National Association of Criminal Defense Lawyers and the National Association of Federal Defenders. Questions presented: Whether Congress had the constitutional authority to enact 18 U.S.C. 4248, which authorizes court-ordered civil commitment by the federal government of (1) "sexually dangerous" persons who are already in the custody of the Bureau of Prisons, but who are coming to the end of their federal prison sentences, and (2) "sexually dangerous" persons who are in the custody of the Attorney General because they have been found mentally incompetent to stand trial. Brief argues that evidentiary standards and lack of procedural safeguards render the civil commitment provisions of the Adam Walsh Act, 18 U.S.C. �4248, violate due process and also that the statute is void for vagueness. Authors: Jeffrey T. Green, et al., Sidley Austin, Washington, D.C. U.S. v. Diaz, U.S. Court of Appeals for the Armed Forces (C.A.A.F.), USCA Dkt. No. 09-0535/NA, Crim. App. No. 200700970; filed 10/29/09. Sixth Amendment Right to Present a Defense – Fifth Amendment Right to a Fair Trial – Mens Rea – Classified Information. Amicus curiae brief of the National Association of Criminal Defense Lawyers in support of appellant Lt. Cmdr. Matthew M. Diaz. Argument: Lt. Cmdr. Diaz, a Navy JAG convicted of improper disclosure of classified information did not receive a fair trial because he was precluded from introducing any evidence of his “intent,” “state of mind,” “motive,” “ethical obligations” as an attorney, and “ethical obligations” as a commissioned officer in the Navy. Appellant was precluded from introducing evidence that the information (a list of detainees being held at Guantanamo Bay, Cuba) was not marked as classified; that he did not know or believe his actions to be illegal; and that his actions were in good faith and consistent with his duties and obligations a lawyer. Excluding this evidence violated his right to a fair trial and right to present a defense. Furthermore, the Military Judge failed to determine whether the “classified information in question was lawfully classified." Author: Donald G. Rehkopf, Jr., Brenna, Brenna & Boyce, PLLC, Rochester, NY. United States v. Johnson, 9th Cir., No. 08-30094, panel decision 581 F.3d 994, brief filed 10/19/09. Federal sentencing guidelines—Acceptance of responsibility. Amicus curiae brief of the Ninth Circuit Federal Public and Community Defenders and the National Association of Criminal Defense Lawyers in support of defendant-appellant’s petition for rehearing en banc. Argument: The panel majority erroneously upheld denial of the third level for acceptance of responsibility (Guidelines �3E1.1) where the defendant entered a conditional guilty plea in order to appeal his Fourth Amendment claim. Author: Stephen Sady, Federal Public Defender Office, Portland, OR. United States v. Kuehne, 11th Circuit, No. 09-10199, brief filed 6/15/09. Opinion below 2008 WL 5381394 (S.D. Fla. Dec.22, 2008). Money laundering—Conspiracy. Amicus curiae brief of the National Association of Criminal Defense Lawyers in support of Defendants-Appellants in Support of Affirmance of Dismissal of money laundering conspiracy count. Argument: In that Congress provided an exception to the money laundering statutes, 18 U.S.C. �1956-1957, for bona fide attorneys’ fees – transactions “necessary to preserve” an individual’s Sixth Amendment right to representation—the government’s parsimonious view of what is “necessary” to a defense threatens to hamstring all complex criminal defense efforts by interjecting the threat of prosecution into every monetary transaction over $10,000 in which counsel enters. The threat of possible prosecution of retained counsel in virtually any case may well dissuade attorneys from taking on clients in certain types of cases, thus depriving some defendants of their right to counsel of choice. Authors: Howard M. Shapiro, Jonathan E. Neuchterlein, et al., WilmerHale LLP, Washington, DC, and David Oscar Markus, Miami, FL. Brief in Support of Defendant's Motion to Dismiss before the U.S. District Court for the Southern District of Florida. United States v. SDI Future Health Inc., 9th Cir., No. 07-10261, panel decision, 553 F.3d 1246 (9th Cir. 2009), brief filed Feb. 27, 2009. Search and seizure—Business premises—Shareholder’s standing to challenge search. Amicus curiae brief of the National Association of Criminal Defense Lawyers in support of defendant-appellees’ petition for rehearing en banc. The district court granted a motion to suppress filed by the defendant SDI, a closely-held corporation, and its two major shareholders, and the government appealed. The court of appeals affirmed in part and reversed in part, and the defendants filed a petition for rehearing en banc. Argument: The panel incorrectly held that an owner of a closely-held corporation (other than a “small, family-run business”) lacks standing to challenge a search pursuant to a defective warrant of the corporate premises beyond his personal office; the interests of a closely-held corporation may coincide with the interests of the owner himself; and the owners of a closely-held corporation may have Fourth Amendment rights in the company’s entire premises. Authors: Kevin P. Martin, Goodwin Proctor LLP, Boston, and Sheryl McCloud, Seattle. United States v. Turk, U.S. District Court (S.D.N.Y.), No. 07-CR-1062 (NRB) , filed 10/19/09. U.S. Sentencing Guidelines---Loss Analysis---Fraud. Joint amicus curiae brief of the National Association of Criminal Defense Lawyers, the New York State Association of Criminal Defense Lawyers, and the New York Council of Defense Lawyers. Argument: Defendants should be sentenced based only upon those losses that their conduct proximately caused. The government’s efforts to limit proximate cause analysis to securities fraud cases are unconvincing and unsupported; application of proximate cause principles will avoid unjust results that conflict with the purposes of the guidelines. Authors: Lawrence S. Bader, Robert M. Radick, and Claudio Ochoa of Morvillo, Abramowitz, Grand, Iason, Anello, and Bohrer P.C. in New York, NY; Richard D. Willstatter, Vice Chair of NACDL’s Amicus Curiae Committee and Amicus Curiae Committee Chair for the New York State Association of Criminal Defense Lawyers of White Plains and New York, NY; and Barry A. Bohrer, President of the New York Council of Defense Lawyers. Weyhrauch v. U.S., Sup. Ct., No. 08-1196, case below, 548 F.3d 1247 (9th Cir. 2008), brief filed 9/21/09. Due Process---Honest-Services Fraud---Section 1346---Federalism. Amicus curiae brief of the National Association of Criminal Defense Lawyers in support of petitioner. Argument: The federal “honest services” fraud statute, 18 U.S.C. 1346, raises critical constitutional concerns in that it (i) is unconstitutionally vague and fails to provide the degree of fair warning of its scope or meaning, as required by the Due Process Clause, and (ii) invades a regulatory area constitutionally committed to the states under the doctrine of federalism. Authors: Abbe David Lowell, Paul M. Thompson, and Jeffrey W. Mikoni, McDermott Will & Emery LLP, Washington, DC. Wood v. Allen, U.S. Sup. Ct., No. 08-9156, case below, 542 F.3d 1281 (11th Cir. 2008), brief filed 8/10/09. Capital Case---Postconviction proceedings—Sentencing---Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA)---Mental Capacity Defense. Amicus curiae brief of the National Association of Criminal Defense Lawyers in support of petitioner. Argument: The verbatim adoption of proposed orders is typical in Alabama capital postconviction cases and produces serious flaws in the resulting orders. The Eleventh Circuit erred in accepting as reasonable erroneous factual determinations in the trial court’s orders that were adopted verbatim from the proposed orders drafted by state prosecutors. Authors: Jonathan L. Marcus, Gregory M. Lipper, Anne Y. Lee, and Alithea Z. Sullivan, Covington & Burling LLP, Washington, DC. 2008 Abuelhawa v. United States, U.S. Sup. Ct., No. 08-192, case below 523 F.3d 415 (4th Cir. 2008), brief filed 9/15/08.� Drugs—Use of Telephone. Amicus curiae brief of the National Association of Criminal Defense Lawyers in support of petition for certiorari. Question presented: Whether a buyer’s use of a telephone (cell phone) to purchase drugs for personal use “facilitates” the commission of a drug “felony,” 21 U.S.C. � 843(b), on the theory that the crime facilitated by the buyer is not his purchase of drugs for personal use, a misdemeanor, but is the seller’s distribution of the drugs to the buyer (a felony).� Authors: Jeffrey A. Lamken, E. Barrett Atwood and Heather M. Souder, Baker Botts LLP, Washington, DC. Arizona v. Gant, U.S. Sup. Ct., No. 07-542, opinion below 162 P.3d 640 (Ariz. 2007), brief filed 7/25/08, argument 10/07/08. Search and seizure—Vehicles—Traffic offenses. Amicus curiae brief of the National Association of Criminal Defense Lawyers in support of Respondent. Argument: The rule in New York v. Belton (1981), which allows the search of a vehicle’s interior incident to a custodial arrest of an occupant of the vehicle, as practiced on state highways, violates the Fourth Amendment and should be overruled. Held: Police may search the passenger compartment of a car incident to an occupant’s arrest only if it is reasonable to believe that the arrestee might access the vehicle after his arrest or that the passenger compartment contains evidence of a crime. Authors: Jeffrey L. Fisher and Pamela S. Karlan, Stanford Law School Supreme Court Litigation Clinic, Stanford, CA; Amy Howe and Kevin Russell, Howe and Russell PC, Bethesda, MD; and Thomas C. Goldstein, Akin Gump Strauss Hauer & Feld LLP, Washington DC. Arizona v. Johnson, U.S. Sup. Ct., No. 07-1122, decision below 170 P.3d 667 (Ariz. App. 2007), brief filed Nov. 2, 2008. Search and seizure—Weapons frisk—Lack of suspicion of criminal activity. Pat-down of passenger following motor vehicle stop was not authorized because officer had no reason to believe defendant was involved in criminal activity, even if officer reasonably believed respondent was armed and dangerous. Argument: Under Terry v. Ohio, 392 U.S. 1 (1968), an officer may seize a person for a weapons frisk if the officer reasonably concludes that “criminal activity may be afoot and that the person[] . . . may be armed and presently dangerous”; petitioner and amicus United States seek to replace Terry’s “criminal activity” requirement with a meaningless limitation that the officer has a “lawful right” to be present, a position that cannot be squared with Terry or the Fourth Amendment. Authors: Meir Feder and Donald B. Ayer, Jones Day, New York, NY. Bell v. Kelly, U.S. Sup. Ct., No. 07-1223, case below (unreported) 2008 WL 59946 (4th Cir. 2008). Habeas corpus—Due Process—AEDPA. Amicus curiae brief of the National Association of Federal Defenders and the National Association of Criminal Defense Lawyers in support of Petitioner.� Question Presented: Did the Fourth Circuit err when, in conflict with decisions of the Ninth and Tenth Circuits, it applied the deferential standard of 28 U.S.C. � 2254(d), which is reserved for claims “adjudicated on the merits” in state court, to evaluate a claim predicated on evidence of prejudice the state court refused to consider and that was properly received for the first time in a federal evidentiary hearing? Argument The absences of a “full and fair” state court review of petitioner’s ineffective assistance of counsel claim renders the Fourth Circuit’s application of �2254(d)(1) a violation of due process. Authors: Andrea Lyon, DePaul University College of Law, Chicago, IL, and Justin F. Marceau, University of Denver Strum College of Law, Denver, CO. Boyle v. United States, U.S. Sup. Ct., No. 07-1309, case below unpublished, brief filed 12/01/08. Racketeering (RICO)—Definition of “organization.” Amicus curiae brief of the National Association of Criminal Defense Lawyers. Argument: The district court instructed the jury that it “may find an enterprise where an association of individuals, without structural hierarchy, forms solely for the purpose of carrying out a pattern of racketeering acts.” The notion that a RICO enterprise need not have a structure or organization apart from the enterprise’s underlying crimes themselves would expand RICO from a prohibition against certain federal and state crimes committed in the course of managing the affairs of an ascertainable organization into a sanction against multiple criminality of almost any sort. Authors: Richard Willstatter, White Plains, NY; William W. Taylor III and Shawn P. Naunton, Zuckerman Spaeder LLP, Washington, DC; Terrance G. Reed, Lankford, Coffield and Reed, Alexandria, VA; Samuel J. Buffone and Cassandra H. Welch, Ropes and Gray, Washington, DC. Burgess v. United States, U.S. Sup. Ct., No. 06-11429, opinion below 478 F.3d 658 (4th Cir. 2007), brief filed January 29, 2008, argument March 24, 2008. Prior convictions—Rule of lenity. Amicus curiae brief of the National Association of Criminal Defense Lawyers and Families Against Mandatory Minimums. Questions presented: 1. Whether the term “felony drug offense” as used in federal statute requiring imposition of enhanced mandatory minimum 20 years’ imprisonment when drug offender has “prior conviction for a felony drug offense” must be read in pari material with federal statutes defining both “felony” and “felony drug offense”, so as to require imposition of minimum 20—year sentence only if prior drug conviction is both punishable by more than one year in prison and characterized as a felony by controlling law. 2. When the court finds that a criminal statute is ambiguous, must it then turn to rule of lenity to resolve ambiguity? Authors: Pamela Harris, O’Melveny & Myers, Washington, D.C.; Peter Goldberger, Ardmore, Pa.; Mary Price, FAMM, Washington, D.C.; Kevin B. Huff and Gregory G. Rapawy, Kellogg Huber, Washington, D.C. Caperton v. A.T. Massey Coal Co., U.S. Sup. Ct., No. 08-22, opinion below 2008 WL 918444 (W.Va. 2008), cert. granted 11/14/08, brief filed 01/05/09. Judicial Elections—Judicial Ethics—Recusal. Amicus curiae brief of the National Association of Criminal Defense Lawyers in support of the petitioner. Justice Brent Benjamin of the Supreme Court of Appeals of West Virginia refused to recuse himself from the appeal of the $50 million jury verdict in this case, even though the CEO of the lead defendant spent $3 million supporting his campaign for a seat on the court--more than 60 percent of the total amount spent to support Justice Benjamin's campaign-- while preparing to appeal the verdict against his company. After winning election to the court, Justice Benjamin cast the deciding vote in the court's 3-2 decision overturning that verdict. Question presented: Whether Justice Benjamin's failure to recuse himself from participation in his principal financial supporter's case violated the Due Process Clause of the Fourteenth Amendment. Author: Norman L. Reimer, National Association of Criminal Defense Lawyers, Washington, D.C. On brief: Pamela Harris, O’Melveny & Myers, Washington, D.C. Corley v. United States, U.S. Sup. Ct., No. 07-10441, case below 500 F.3d 210 (3rd Cir. 2007), brief filed 5/19/08, cert. granted, 10/1/08. Confessions—Admissibility—Federal courts. Amicus curiae brief of the National Association of Criminal Defense lawyers in support of the petition for writ of certiorari.� Question presented: Whether 18 U.S.C. �3501—read together with Fed. R. Crim. P. Rule 5(a), McNabb v. United States, 318 U.S. 332 (1943), and Mallory v. United States, 354 U.S. 449 (1957)—requires that a confession taken more than six hours after arrest and before presentment be suppressed if there was an unreasonable or unnecessary delay in bringing the defendant before the magistrate judge. To reconcile a split in the circuits, brief argues that a �3501(c) bright line rule is needed, as litigating the �3501(b) voluntariness test in every case where the defendant challenges admissibility of a confession would create a burden on the courts, in addition to fostering uncertainty among law enforcement officers and defense lawyers as to which confessions should be excluded. Authors: Jeffrey T. Green and Holly L. Henderson, Sidley Austin LLP, Washington, DC and Sarah O’Rourke Schrup, Northwestern University Supreme Court Practicum, Chicago, IL. Brief of NACDL and the National Association of Federal Defenders in support of petitioner filed 11/24/08. Authors: Jeffrey T. Green and Quin M. Sorenson, Sidley Austin, Washington, DC. Flores-Figueroa v. United States, U.S. Sup. Ct., No. 08-108, case below 274 Fed. Appx. 501 (8th Cir. 2008), brief filed 12/22/08. Mens Rea—Aggravated Identity Theft. Amicus curiae brief of the National Association of Criminal Defense Lawyers in support of Petitioner. Question Presented: Whether a statute’s specified mens rea requirement extends to all elements of the offense, the application of which in this case would resolve whether, to prove aggravated identity theft under 18 U.S.C. � 1028A(a)(1), the government must show that the defendant knew that the means of identification he used belonged to another person. Argument: The Court should adopt the Model Penal Code Rule (� 202(4) (1985)) that a specified mens rea requirement extends to all material elements of a statute unless a contrary purpose plainly appears, and that the rule of lenity requires reading the statute to require knowledge of all elements of the crime. Authors: Sri Srinivasan, Irving L. Gornstein, Justin Florence, O’Melveny & Myers LLP, Washington, DC, and Pamela Harris, Amicus Committee Co-Chair, National Association of Criminal Defense Lawyers, and O’Melveny & Myers LLP, Washington, DC. Giles v. California, U.S. Sup. Ct., No. 07-6053, opinion below, 152 P.3d 433 (Cal. 2007), brief filed 3/04/08. Confrontation/Sixth Amendment. Amicus curiae brief of the National Association of Criminal Defense Lawyers in support of petitioner. Question presented: Whether a defendant forfeits his Sixth Amendment right to confrontation if the defendant kills the witness, even if the defendant did not cause the witness’s unavailability for the purpose of preventing the witness from testifying. The defendant admitted killing his girlfriend but claimed he acted in self-defense, testifying that she was a violent person who had shot another man and had threatened people with knives. To prove that the killing was premeditated, the state introduced statements the decedent has made to police officers weeks earlier accusing the defendant of threatening and assaulting her on another occasion; the court admitted the statements under a statutory hearsay exception for certain “trustworthy” statements of unavailable witnesses. Authors: Jeffrey A. Lamken and Robert K. Kry, Baker Botts LLP, Washington, DC and Kennon L. Peterson, Baker Botts LLP, San Antonio, TX. Greenlaw v. United States, U.S. Sup. Ct., No. 07-330, opinion below, 481 F.3d 601 (8th Cir. 2007), brief filed 2/21/08. Argument: 4/15/08. Appeals—Sentencing—Mandatory minimums. Numerous courts have held that a court of appeals may not order an increase in a criminal defendant’s sentence in the absence of an appeal or cross-appeal by the Government. The Eighth and Tenth Circuits, however, have held that courts of appeals may sua sponte order increases in a defendant’s sentence when the district court has failed to impose a statutory mandatory minimum sentence, even if the Government has not appealed or cross-appealed the sentence. Question presented: �Whether a federal court of appeals may increase a criminal defendant’s sentence sua sponte and in the absence of a cross-appeal by the Government. Author: Jonathan D. Hacker, Harvard Law School Supreme Court and Appellate Advocacy Clinic, Cambridge, MA. Herring v. United States, U.S. Sup. Ct., No. 07-513, opinion below 492 F.3d 1212 (11th Cir. 2007), brief filed 5/16/2008, argument 10/07/08. Search and seizure—Exclusionary rule—Search incident to erroneous arrest. Amicus curiae brief of the National Association of Criminal Defense Lawyers in support of Petitioner. Argument: The Fourth Amendment’s Exclusionary Rule requires that evidence seized in a search incident to an erroneous or unlawful arrest must be suppressed. Authors: Pamela Harris and Joseph Blocher, O’Melveny & Myers LLP, Washington, DC, and Walter Dellinger, Harvard Law School Supreme Court and Appellate Practice Clinic. Indiana v. Edwards, U.S. Sup. Ct., No. 07-208, brief filed February 8, 2008. Opinion below, 866 N.E.2d 252 (Ind. 2007). Sixth Amendment—Self-representation—Competency—Right to fair trial. Amicus curiae brief of the National Association of Criminal Defense Lawyers in support of neither party. Question presented: May states adopt a higher standard for measuring competency to represent oneself at trial than for measuring competency to stand trial? Brief argues for a return to the common law competency standard, that if an unrepresented defendant is not able to present a reasoned defense due to mental infirmity then he is not competent. In the alternative, the Court should permit states to appoint an attorney to represent mentally-infirm defendants whose competency to stand trial is dependent upon the assistance of counsel. The Sixth Amendment right of self-representation is not absolute, and protecting the right to a fair trial of defendants who would be deemed incompetent under the common law standard is an appropriate reason for recognizing an exception to it. Authors: Kevin P. Martin, Abigail K. Hemani and Dahlia S. Fetouh, Goodwin Proctor LLP, Boston, MA. In The Matter Of William M., Nevada Sup. Ct., No. 48650, Brief Filed January 30, 2008.� Juvenile - Waiver to Adult Court.� Amicus Brief of the National Juvenile Defender Center, National Assocaition of Criminal Defense Lawyers, et. al.� Question Presented:��Whether�Nevada's statute authorizing automatic transfer of juveniles accused of certain crimes to adult court violate the Fifth, Sixth and Fourteenth Amendment rights of juvenile defendants?� Authors:� Joel A. Eisenberg, Douglas Sanders, Baker & Mackenzie, San Francisco, CA; Robin Walker Stering, National Juvenile Defender Center, Washington, DC. Kay v. United States, U.S. Sup. Ct., No. 07-1281. Indictment—Rule of lenity. Amicus curiae �brief of the National Association of Criminal Defense Lawyers in support of the petition for a writ of certiorari.� Questions presented: 1. When an indictment omits an element of the offense, must it be dismissed, or may such an error instead be excused as harmless? (The Court granted certiorari to decide this question, but did not resolve it, last Term in United States v. Resendiz-Ponce, 127 S. Ct. 782, 785-86 (2007).)� 2. When the text, structure, and legislative history of a criminal statute are all ambiguous, is the rule of lenity applicable, or instead is that principle limited merely to cases in which the court can only “guess” at Congress’s intent?� Authors: John D. Cline and Peter E. Davids, Jones Day, San Francisco, CA. Kiyemba v. Bush (Uighur Case), D.C. Cir., Nos. 08-5424, 08-5425, 08-5426, 08-5427, 08-5428, 08-5429, opinion below In re Guantanamo Bay Detainee Litigation , 581 F. Supp. 2d 33 (D.D.C. 2008), brief filed 10/31/08. Habeas corpus—Separation of Powers. Amicus curiae brief of the Brennan Center for Justice at New York University School of Law, the Constitution Project, the Rutherford Institute, and the National Association of Criminal Defense Lawyers in support of Petitioner. Question Presented: Does the Constitution’s Separation of Powers grant the District Court the power to remedy the indefinite detention of conceded non-enemy combatants who were forcibly taken into U.S. custody? Argument: The Executive’s asserted authority to indefinitely detain conceded non-enemy combatants is inconsistent with the Suspension Clause, Article III, and the Constitution’s framework of separated powers. Authors: Sharon Bradford Franklin, Constitution Project, Washington, DC; John W. Whitehead, Rutherford Institute, Charlottesville, VA; Malia N. Brink, National Association of Criminal Defense Lawyers, Washington, DC; Alex Young K. Oh, Paul, Weiss, Rifkind, Wharton & Garrison LLP, Washington DC; Aziz Huq, Brennan Center for Justice at New York University School of Law, New York, NY. Knowles v. Mirzayance, U.S. Sup. Ct., No. 07-1315, case below unpublished (9th Cir. 05-57102), brief filed 10/09/08. Habeas corpus—State courts—Federal constitutional law. Amicus curiae brief of the National Association of Criminal Defense Lawyers. Argument: 28 U.S.C. � 2254(d) requires that a federal court decide whether a habeas petitioner’s federal claim was fully adjudicated “on the merits” in state court; it has never been applied, as in this case, to a summary, unexplained state court decision. Respondent’s trial counsel’s last-minute decision to forego his insanity defense was objectively unreasonable, and respondent’s ineffective assistance of counsel claim should prevail. Authors: John H. Blume and Keir M. Weyble, Cornell Law School, Ithaca, NY. Marcrum v. Roper, U.S. Sup. Ct., No. 07-1566, opinion below 509 F.3d 489 (8th Cir. 2007), brief filed 7/17/08, cert. denied 12/08/08. Ineffective assistance of counsel. Amicus curiae brief of the National Association of Criminal Defense Lawyers in support of petition for writ of certiorari. Argument: Overall fairness of the trial was undermined by the cumulative effect of trial counsel’s errors. Authors: Jeffrey T. Green, Rebecca K. Wood, Norini Irani Edelman, Amy L. Hanke, Sidley Austin LLP, Washington, DC; Sarah O’Rourke Schrup, Northwestern Univ. Supreme Court Practicum, Chicago, IL. Melendez-Diaz v. Massachusetts, U.S. Sup. Ct., No. 07-591, decision below unpublished, 870 NE2d 676 (Table); brief filed 6/23/07, argument 11/10/08.� Lab reports—Hearsay—Confrontation clause.� Amicus curiae brief of the National Association of Criminal Defense Lawyers, the National Association of Federal Defenders and National College for DUI Defense in support of Petitioner.� Question presented: Whether a state forensic analyst’s laboratory report prepared for use in a criminal prosecution is “testimonial” evidence subject to the demands of the Sixth Amendment’s Confrontation Clause as set forth in Crawford v. Washington, 541 U.S. 36 (2004). Montejo v. Louisiana, U.S. Sup. Ct., No. 07-1529, case below 974 So.2d 1238 (La. 2008), brief filed 11/24/08. Interrogation—Right to counsel. Amicus curiae brief of the National Association of Criminal Defense Lawyers, the American Civil Liberties Union, the ACLU of Louisiana, and the Brennan Center for Justice, New York University School of Law in support of petitioner. Question presented:� When an indigent defendant’s right to counsel has attached and counsel has been appointed, must the defendant take additional affirmative steps to “accept” the appointment in order to secure the protections of the Sixth Amendment and preclude police-initiated interrogation without counsel present? Authors: Jonathan L. Marcus, Anna E. Lumelsky, Covington & Burling LLP, Washington, DC, et al. Supplemental briefing ordered 3/30/09: Should Michigan v. Jackson, 475 U.S. 625 (1986), which held that that if police initiate interrogation after defendant's assertion of his right to counsel at arraignment or initial appearance, any subsequent waiver of the right to counsel during police interrogation is invalid, be overruled? Amicus curiae Supplemental Brief of the NACDL, ACLU, ACLU of Louisiana, the Brennan Center for Justice, and the Southern Center for Human Rights. Authors: Jonathan L. Marcus, Anna E. Lumelsky and Gary Feldon, Covington & Burling, Washington, DC, filed 4/14/09. Oregon v. Ice, U.S. Sup. Ct., No. 07-901, case below 170 P3d 1049 (Or. 2007). Consecutive sentences—Apprendi—Blakely. Amicus curiae brief of the National Association of Criminal Defense Lawyers in support of Respondent. Argument: Oregon’s consecutive sentence statute, which allows a judge to impose consecutive sentences upon finding certain facts, violates the Sixth Amendment and the Court’s decisions in Apprendi v. New Jersey (2000) and Blakely v. Washington (2004).� Authors: Jeffrey T. Green, James C. Owens and Madeleine V. Findley, Sidley Austin LLP, Washington, DC. Pearson v. Callahan, U.S. Sup. Ct., No. 07-751, opinion below 494 F3d 891 (10th Cir. 2007). Search and seizure—Warrant requirement—Third party “consent once-removed”. Amicus curiae brief of the National Association of Criminal Defense Lawyers in support of Respondent. Argument: Police officers may not enter and search a private home without a warrant based on the “consent” of a third party, a non-resident informant who purchased drugs there, and the search was so unreasonable that the officers are not entitled to qualified immunity from civil suit. Authors: Jeffrey A. Lamken, et al., Baker Botts LLP, Washington, DC. Puckett v. United States, U.S. Sup. Ct., No. 07-9712, case below 505 F.3d 377 (5th Cir. 2007), brief filed 11/24/08. Plea bargains—Breach by government—Plain error. Amicus curiae brief of the National Association of Criminal Defense Lawyers in support of petitioner. Question presented: Whether a forfeited claim that the government breached a plea agreement is subject t0 the plain-error standard of Rule 52(b) of the Federal Rules of Criminal Procedure. Argument: Prosecutorial breaches of plea agreements undermine the plea bargaining process and the criminal justice system at large, and the Court should adopt a rule requiring automatic reversal for government breaches of plea agreements. Authors: Kevin P. Martin, Dahlia S. Fetouh, Jodi B. Kalagher and Natalie F. Langlois, Goodwin Proctor LLP, Boston, MA. Rivera v. Illinois, U.S. Sup. Ct., No. 07-9995, case below 879 N.E.2d 876 (Ill. 2007), brief filed 12/12/08. Jury selection—Erroneous denial of peremptory strike. Amicus curiae brief of the National Association of Criminal Defense Lawyers in support of petitioner. Question presented:� Whether the erroneous denial of a criminal defendant’s peremptory challenge that resulted in a challenged juror’s being seated requires automatic reversal of a conviction because it undermines the trial structure for preserving the constitutional right to due process and an impartial jury. Authors: Abigail K. Hemani, Anne E. Railton and Sarah M. Burleson, Goodwin Proctor LLP, New York, NY and Kevin P. Martin, Goodwin Proctor LLP, Boston, MA. On brief: Barbara Bergman, Albuquerque, NM. Rothgery v. Gillespie County, U.S. Sup. Ct., No. 07-440, brief filed January 23, 2008, argument March 17, 2008. Opinion below 491 F.3d 293 (5th Cir. 2007). Right to counsel—Bail hearing. NACDL amicus curiae brief in support of petitioner. Question presented: In this case, petitioner was arrested and brought before a magistrate judge who informed petitioner of the accusation against him, found probable cause that he had committed the offense based on a police officer’s sworn affidavit, and committed him to jail pending trial or the posting of bail. The question presented is whether the Fifth Circuit correctly held—in a decision that conflicts with those of other federal courts of appeals and state courts of last resort—that adversary judicial proceedings nevertheless had not commenced, and petitioner’s Sixth Amendment rights had not attached, because no prosecutor was involved in petitioner’s arrest or appearance before the magistrate. Author: Ian Heath Gershengorn, Jenner & Block, Washington, D.C. United States v. Ionia Management, S.A., U.S. Court of Appeals for the Second Circuit, No. 07-5801-CR, brief filed 6/6/08.� Vicarious criminal liability – Jury instructions – Respondeat superior doctrine. Amicus curiae brief of the National Association of Criminal Defense Lawyers, the New York State Association of Criminal Defense Lawyers, the Association of Corporate Counsel, the National Association of Manufacturers, the U.S. Chamber of Commerce and the Washington Legal Foundation.� Appeal from the criminal conviction of a shipping company for unlawful actions of the crew of one of its ships, over which the company had no direct control while on the high seas.� Argument: Assignment of vicarious corporate criminal liability through the application of the civil law doctrine of respondeat superior, in which an employer may be held for wrongful actions of his employee in some circumstances, was authorized neither by statute nor precedent. Authors: Andrew Weissmann, et al., Jenner & Block LLP, New York, NY. United States v. Moussaoui, 4th Circuit, No. 06-4494, filed 2/22/08. Classified Information Procedures Act (CIPA)—Discovery—Right to counsel. Amicus curiae brief of the National Association of Criminal Defense Lawyers. Argues that providing classified discovery to defense counsel with security clearance under a protective order that prohibits disclosure to the defendant effectively denies the defendant the right to effective assistance of counsel and creates an ethical conflict of interest for the defense counsel; case involving classified evidence are proliferating and the legal principles and law enforcement techniques used in those cases are seeping into the prosecution of ordinary criminal cases. Author: Joshua Dratel, New York, NY. United States v. Nacchio, 10th Cir., No. 07-1311, 519 F.3d 1140 (10th Cir. 2008), pet. rehearing�en banc�granted 7/30/08; oral argument 9/25/08. Expert witnesses.� NACDL amicus curiae brief in support of appellant Joseph P. Nacchio addressing the district court's refusal to allow the defendant to call an expert witness. On March 17, 2008, the court of appeals reversed the defendant's conviction finding that the exclusion of the defense expert was prejudcial error; the government petitioned for rehearing before the full court of appeals. Authors: Andrew H. Schapiro and Evan P. Schultz, Mayer Brown, New York and Washington; David B. Smith, English & Smith, Alexandria, VA. NACDL amicus curiae brief in support of appellant en banc filed 9/03/08. Author: Andrew H. Schapiro, Mayer Brown LLP, New York. United States v. Polouizzi (Polizzi), 2nd Cir., No. 08-1830-cr, filed 11/17/08. Sentencing—Jury trial—Mandatory minimums. �Amicus curiae brief of the National Association of Criminal Defense Lawyers (NACDL) and Families Against Mandatory Minimums (FAMM) in support of defendant-appellant/cross-appellee Polizzi. Argument: District court judge, recognizing that he had erred in not instructing or permitting the jury be informed that charges against the defendant carried a mandatory minimum sentence as required by the Sixth Amendment’s right to trial by jury, ordered a new trial, from which the government appeals.� As far back as Colonial times, jurors were well-aware of the range of punishments for various offenses upon a guilty verdict, which gave them significant discretion over the defendant’s sentence. Brief also argues in the alternative that possession and receipt of child pornography charges are multiplicitous and violate the Double Jeopardy Clause. Authors: A. Stephen Hut, Jr. and Marc E. Johnson, Wilmer Hale, Washington, DC, and Adam Hornstine, Wilmer Hale, Boston; Richard Willstatter, White Plains, NY, for NACDL and Peter Goldberger, Ardmore, PA, for FAMM. United States v. Reyes, 9th Cir., No. 08-10047, brief filed 9/12/08. Securities fraud – Mens rea – Prosecutorial misconduct -- Options backdating. Amicus curiae brief of the National Association of Criminal Defense Lawyers. Argument: Evidence alone that defendant signed options grants to other people – and not to himself – that were improperly dated is insufficient to establish the requisite mens rea to have “willfully” violated the criminal securities fraud laws. The only government witness to the alleged deception was a low level finance department employee who testified that she did not know that the options grants had been backdated and who recanted her testimony after trial. The brief also argues also that the facts of this case fail to establish even the “materiality to investors” requirement for a finding of civil liability; the evidence being insufficient as a matter of law, the conviction should be vacated and remanded with directions to enter a verdict of acquittal. Authors: Donald Falk, et al., Mayer Brown LLP, Palo Alto, CA. United States v. San Diego Gas & Electric Co., U.S. Ct. App. 9th Circuit, brief filed 11/7/08. Amicus curiae brief of the Washington Legal Foundation and the National Association of Criminal Defense Lawyers in support of defendant-appellees urging affirmance.� Argument: Defendants were unjustly prosecuted and convicted for allegedly violating work practice standards promulgated under the Clean Air Act regarding removal and disposal of asbestos-containing material found in multi-layer pipe wrap, but no evidence was presented that a single asbestos fiber was released into the environment. Amici urge the court to affirm the district court’s order granting a new trial. Authors: Daniel J. Popeo, Paul D. Kamenar and Richard A. Samp, Washington Legal Foundation, Washington, DC. United States v. Svete, 11th Cir., No. 05-13809, on rehearing en banc.� Mail fraud—Standard of proof. Amicus curiae brief of the National Association of Criminal Defense Lawyers in support of Appellants on rehearing en banc. Argument: Requiring proof beyond a reasonable doubt that a defendant created a scheme or artifice to defraud “a person of ordinary prudence and comprehension” demarcates the boundary between conduct that is merely unethical and conduct that is unlawful and worthy of criminal prosecution. Authors: Paul N. Monnin, DLA Piper US LLP, Atlanta, GA and Donald F. Samuel, Garland Samuel & Loeb PC, Atlanta, GA. United States v. Tomko, 3rd Cir., No. 05-4997, on reh’g 498 F.3d 157, brief filed 10/1/08. Sentencing—White collar crime—Federal Sentencing Guidelines—Probation. Amicus curiae brief of the National Association of Criminal Defense Lawyer and Federal Public and Community Defenders of the Third Circuit in support of appellee on rehearing en banc. Argument: District court’s sentence of probation, home confinement and alcohol treatment was appropriate in this tax evasion case. The brief addresses in detail the failure of the Sentencing Commission to comply with statutory mandates relative to probation, as applied in particular to tax and other white collar cases, concluding that under the Supreme Court's recent decisions in Gall and Kimbrough judges should be especially free to reject the guidelines' excessive reliance on imprisonment and instead to grant a great deal more probationary sentences than has been the case in the last 20 years. Numerous authors. Van de Kamp v. Goldstein, U.S. Sup. Ct., No. 07-854, decision below 481 F.3d 1170 (9th Cir. 2007).� Prosecutorial immunity—Brady/Giglio violations—Unreliable informants. Amicus curiae brief of the American Civil Liberties Union, ACLU of Southern California, ACLU of Northern California and the National Association of Criminal Defense Lawyers in support of Respondent. Argument: An office-wide practice of not vetting false jailhouse informant testimony was an administrative decision sufficiently attenuated from line prosecutors’ litigation duties to preclude absolute immunity from civil suit. Authors: M. Allen Hopper, et al., American Civil Liberties Union Foundation, Santa Cruz, CA. Vermont v. Brillon� U.S. Sup. Ct., No. 08-88, case below 955 A.2d 1108 (Vt. 2008), brief filed 12/24/08. Speedy trial—Court appointed counsel—Delay charged to state. Amicus curiae brief of the American Civil Liberties Union, ACLU of Vermont and the National Association of Criminal Defense Lawyers. Argument: The decision of the Vermont Supreme Court should be affirmed. State and federal case law support charging the state with unreasonable delay of trial (Barker v. Wingo) when the defendant is forced to terminate his procrastinating public defenders more than once in a three year period. Authors: Anthony J. Franze and Joel D. Rohlf, Arnold & Porter, Washington, DC. Waddington v. Sarausad, U.S. Sup. Ct., No. 07-772, opinion below 479 F.3d 671, brief filed 8/27/08. Jury instructions—Murder—Mens rea. Amicus curiae brief of the National Association of Criminal Defense Lawyers in support of Respondent. Argument: Jury instructions may be a “formally correct” statement of state law and still be so ambiguous as to be misleading; court below correctly determined that the instructions deprived the defendant of his constitutional right to have a jury determine every element of the charged offense of aiding and abetting murder. Authors: Craig D. Singer and Amer S. Ahmed, Williams & Connolly LLP, Washington, DC. Yeager v. United States, U.S. Sup. Ct., No. 08-67, etc., (consolidated cases) cert. granted 11/14/08. Double Jeopardy Clause—Collateral estoppel.� Amicus curiae brief of the National Association of Criminal Defense Lawyers and 11 Criminal Law Professors in support of the petitions for writ of certiorari. Question: Whether, consistent with the Double Jeopardy Clause, a jury’s failure to reach a verdict on one count of a multi-count indictment can be “weighed” against an acquittal on another factually-related count in a manner that diminishes the acquittal’s collateral estoppel effect for future prosecutions. Authors: Kevin C. Newsome, et al., Bradley Arant Rose & White LLP, Birmingham, AL. 2007 Begay v. United States, U.S. Sup. Ct., No. 06-11543, opinion below, 470 F.3d 964 (10th Cir. 2006), cert. granted, 9/25/07, brief filed 11/13/07. Amicus curiae brief of the National Association of Criminal Defense Lawyers in support of the petitioner. QUESTION PRESENTED: Is felony driving while intoxicated a “violent felony” for purposes of the Armed Career Criminal Act? Author: Marlo P. Cadeddu, Dallas, TX. On brief, Peter Goldberger, Ardmore, PA and Prof. Barbara Bergman, Univ. of New Mexico School of Law, Albuquerque. Boulware v. United States, U.S. Sup. Ct., No. 06-1509, opinion below 470 F.3d 931 (9th Cir. 2006), brief filed 11/13/07. Criminal tax prosecution—Corporations—Shareholders. Amicus curiae brief of the National Association of Criminal Defense Lawyers in support of petitioner. Argument: Diversion of corporate funds to a shareholder of a corporation without earnings and profits automatically qualifies as a non-taxable return of capital up to the shareholder’s stock basis, even if the diversion was originally not labeled as a return of capital. Author: John L. Pollok, New York, NY. Boumediene v. Bush, U.S. Sup. Ct., Nos. 06-1195 & 06-1196. Habea corpus--Military Commission Act. Amicus curiae brief of the Coaltion of Non-Governmental Organizations, including the National Association of Criminal Defense Lawyers, arguing that the habeas-stripping provisions of the Military Commissions Act of 2006, Pub.L. No. 109-366, violate the Suspension Clause of the U.S. Constitution. Authors: Jonathan S. Franklin, et al., Fulbright & Jaworsky LLP, Washington, DC. Cuellar v. United States, U.S. Sup. Ct., No. 06-1456, cert. granted, 10/15/07, Brief of the National Association of Criminal Defense Lawyers in support of certiorari. QUESTION PRESENTED: Whether merely hiding funds with no design to create the appearance of legitimate wealth is sufficient to support a money laundering conviction. Brief argues that the money laundering statute, 18 U.S.C. �1956, is subject to expansive interpretations that encourage broad, unintended and unfair applications of the statute. Authors: Craig D. Singer, John E. Clabby, David A. Taylor, Williams and Connolly LLP, Washington, D.C. Gall v. United States & Kimbrough v.United States, U.S. Sup. Ct., Nos. 06-7949 etc., filed 07/26/07. Federal Sentencing Guidelines. Amicus curiae brief of the National Association of Criminal Defense lawyers in support of (1) It is not consistent with United States v. Booker, 543 U.S. 220 (2005), and Rita v. United States, 551 U.S. __ (2007), for an appellate court to require that a sentence which lies outside the Guidelines range be justified by “extraordinary circumstances,” and (2) Sentencing judges must consider whether the Guideline ranges applicable to a given category of offenses adequately represent a sound balancing of all the Section 3553 factors pertinent to selecting the sentence for a particular case or group of cases within that category. Authors: Miguel A. Estrada and David Debold, Gibson, Dunn & Crutcher LLP, Washington, DC. Gonzalez v. United States, U.S. Sup. Ct., No. 06-11612, opinion below 483 F.3d 390 (5th Cir. 2007), brief filed 11/09/07. Right to trial before Art. III judge. Amicus curiae brief of the National Association of Criminal Defense Lawyers and the National Association of Federal Defenders in support of petitioner. Argument: The Federal Magistrates Act requires that a criminal defendant personally give knowing, voluntary consent to the delegation of felony trial voir dire to a U.S. Magistrate Judge. Author: Joel B. Rudin, New York, NY. Hrasky v. United States, U.S. Sup. Ct., No. 06-827, lower court opinion, 453 F.3d 1099 (8th Cir. 2006), brief filed 3/19/07. Search and seizure – warrantless vehicle searches incident to arrest. NACDL amicus brief in support of the petition for certiorari. Questions presented: (1) Whether law enforcement officers’ exploratory search of the interior of petitioner’s vehicle, after arresting him beyond “reaching distance” from the vehicle, violated the Fourth Amendment’s search-incident-to-arrest doctrine; (2) whether the Court – consistent with the suggestions of several of its Justices – should reconsider its holding in New York v. Belton, 453 U.S. 454 (1981), at least to the extent it entitles officers to conduct exploratory searches of vehicles’ interiors incident to arrests for nothing more than traffic violations. Brief argues, inter alia, that Belton provides opportunity and motive for police officers to engage in pretextual traffic arrests to conduct exploratory automobile searches. Authors: Noah A. Levine, Tori T. Kim and Bassina Farbenblum, Wilmer Cutler Pickering Hael and Dorr LLP, New York, NY. Kennedy v. Louisiana, U.S. Sup. Ct., No. 07-343, argument April 16, 2008. Death Penalty-Rape-Child Witnesses. NACDL amicus curiae brief in support of certiorari. Brief argues that since convictions for child rape often rest solely on the testimony of children, and that research explains that child testimony is frequently unreliable, the risk of innocent persons receiving the death penalty is unacceptable; the Court has consistently held that the Eighth Amendment demands heightened reliability in capital cases. Authors: Jonathan G. Cedarbaum, Michael J. Gottlieb and Joshua M. Salzman, Wilmer Cutler Pickering Hale and Dorr LLP, Washington, D.C. Click Here for NACDL's Merits Brief. Scott v. Harris, No. 05-1631, lower court opinion, 433 F.3d 807 (11th Cir. 2005); decided April 20, 2007. NACDL amicus brief in support of respondent, arguing that police officer violated the plaintiff's Fourth Amendment right to be free from unreasonable seizure when office intentionally collided with plaintiff's vehicle during high speed chase. Questions presented: (1) Whether a law enforcement officer’s conduct is “objectively reasonable” under the Fourth Amendment when the officer makes a split-second decision to terminate a high-speed pursuit by bumping the fleeing suspect’s vehicle with his push bumper, because the suspect had demonstrated that he would continue to drive in a reckless and dangerous manner that put the lives of innocent persons at serious risk of death. (2) Whether, at the time of the incident, the law was “clearly established” when neither this Court nor any circuit court, including the Eleventh Circuit, had ruled the Fourth Amendment is violated when a law enforcement officer uses deadly force to protect the lives of innocent persons from the risk of dangerous and reckless vehicular flight. Authors: Jonathan D. Hacker, et al., O’Melveny & Meyers, Washington, DC. United States v. Heredia, 483 F.3d 913 (9th Cir. 2007) (en banc). Defenses--Jury Instructions--Deliberate Ignorance. NACDL amicus curiae brief in support of appellant. Question: Whether the statutory requirement of the Controlled Substances Act, 21 U.S.C. � 841(a)(1), that criminalizes the act of "knowingly ... possess[ing] with intent to manufacture, distribute, or dispense, a controlled substance" can be extended to a defendant's "deliberate ignorance" of possessing drugs. Argument: Knowledge, in a criminal statute, is actual knowledge, not what one ought to have known or could have learned. Authors: Kenneth W. Starr, et al. Kirkland & Ellis LLP, Washington, DC. United States v. Rodriquez, U.S. Sup. Ct., No. 06-1646, opinion below 464 F.3d 1072 (9th Cir. 2006), brief filed 12/10/07. Armed Career Criminal Act—Prior state offenses. NACDL amicus curiae brief in support of respondent. Argument: The ACCA’s focus on the particular “offense” for which a defendant was previously convicted dictates that the top of the state’s standard sentencing range for that offense is the statutory maximum for that offense. Author: Jeffrey L. Fisher, Stanford, CA. United States v. Santos, U.S.Sup.Ct., No. 06-1005, filed 8/22/07. Arg. 10/03/07. Gambling, Money Laundering. Arguing, inter alia, that the 7th Circuit Court of Appeals’ interpretation of the term “proceeds” as limited to profits is consistent with congressional intent and necessary to prevent defendants from inappropriately being punished twice (and more severely) for the same conduct. Authors: Jeffrey T. Green and Kevin M. Henry, Sidley Austin LLP, Washington, DC. United States v. W.R. Grace, U.S. Ct. App. 9th Circuit, No. 06-30472, amicus curiae brief in support of defendant-appellees’ petition for rehearing en banc. Rule of Lenity--Refiling of dismissed defective indictment after lapse of statute of limitations. Argument: The panel decision erroneously failed to apply the rule of lenity in its ruling that the Clean Air Act’s ban on releasing hazardous air pollutants are defined more broadly in the criminal context than in the civil context; even if there were some merit in the panel’s ruling, the Act is ambiguous in that regard, which triggers the rule of lenity. The panel decision is also in error in holding that the government may cure an untimely indictment, originally dismissed for failure to state an overt act within the statute of limitations, by filing a superseding indictment within six months of dismissal. Authors: Kristina Silja Bennard and David W. Marshall, Davis Wright Tremaine LLP, Seattle, WA. Uttecht v. Brown, No. 06-413, Lower court opinion, 451 F.3d 946 (9th Cir. 2006), cert. granted, January 12, 2007, brief filed March 30, 2007, oral argument April 17, 2007. Death Penalty - Jury Selection. NACDL amicus curiae brief in support of Respondent. The issue involves whether the Ninth Circuit properly granted habeas relief in a capital case on the ground that the state trial court improperly ruled that a juror who expressed misgivings about the death penalty but repeatedly said he could follow the law was not “death qualified.” Brief argues that juror's concern whether lack of "future dangerousness" mitigates against the death penalty comports with Washington state law, and the juror was erroneously excused. Authors: Kevin Russell of Howe & Russell (and the Stanford Supreme Court Litigation Clinic) and Susan Rozelle, Capital University Law School. Virginia v. Moore, U.S. Sup. Ct., No. 06-1082, opinion below 636 S.E.2d 395 (Va. 2006), brief filed 12/07/07. Search and seizure—Warrantless misdemeanor arrest. NACDL amicus curiae brief in support of respondent. Argument: At common law, an arrest falling outside the scope of “arrestable” offenses can never be justified and is always unreasonable; neither probable cause, nor good faith, nor even witnessing the alleged offense can make the arrest reasonable under the Fourth Amendment. E. Joshua Rosenkranz, Heller Ehrman LLP, New York, NY and Warrington S. Parker, III, Heller Ehrman LLP, San Francisco, CA. Watson v. U.S., No. 06-571. Lower court opinion, 191 Fed. Appx. 326, 2006 WL 2061900 (5th Cir. 2006), cert. granted, 2/26/07. NACDL amicus brief filed 5/4/07; Argued 10/09/07. Amicus curiae brief of the National Association of Criminal Defense Lawyers. Question Presented: 18 U.S.C. � 924(c)(1) criminalizes the “use” of a firearm during and in relation to a drug trafficking offense and imposes a mandatory consecutive sentence of at least five years’ imprisonment. In Bailey v. United States, 516 U.S. 137 (1995), this Court held that “use” of a firearm under � 924(c) means “active employment.” Id. at 144. The question presented in this case is: Whether the mere receipt of an unloaded firearm as payment for drugs constitutes “use” of the firearm during and in relation to a drug trafficking offense within the meaning of 18 U.S.C. � 924(c)(1)(A) and the Supreme Court’s decision in Bailey.Authors: Jeffrey Green, Sidley Austin, L.L.P., and the Northwestern Law School Supreme Court Clinic. 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, US SupCt, 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, USSupCt, 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, USSupCt., 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, USSupCt., 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), USSupCt, 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-Booker guideline 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, USSupCt., 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. 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. U.S. 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 Worldco, 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, USSupCt., 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. 2005 Arthur Andersen, LLP v. U.S., USSupCt., 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, USSupCt., 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, USSupCt., 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, USSupCt., 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, USSupCt, 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, USSupCt., 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, USSupCt., 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, USSupCt., 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, USSupCt., 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, USSupCt, 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, USSupCt, 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, USSupCt, 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, USSupCt, 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, USSupCt., 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. 2004 Crawford v. Washington, 541 U.S. 36 (2004) U.S. Supreme Court Amicus curiae brief of NACDL, ACLU and ACLU of Washington. Crawford overruled Ohio v. Roberts, 448 U.S. 56 (1980), which until 2004 allowed introduction of hearsay statements with "particularized guarantees of trustworthiness." The Court (Scalia, J.) ruled 7-2 that the Sixth Amendment "commands, not that evidence be reliable, but that reliability be assessed in a particular manner: by testing in the crucible of cross-examination." 124 S.Ct. at 1370. The Court emphasized that Confrontation Clause protection only applies to "testimonial" out-of-court statements, such as statements against penal interest (the statement at issue in this case). Encouragingly, the Court acknowledged its ruling creates some tension with other hearsay exceptions, such as spontaneous ("excited") utterances; the Court specifically refused to decide whether the Sixth Amendment incorporates an "historical" exception for dying declarations. Authors: Jeffrey T. Green, et al. Roper v. Simmons, USSupCt., No. 03-633. Amici Curiae brief, The joint brief argues that evolving standards of decency now make it clear that imposition of the death penalty on an individual who commits a murder at age 17 is cruel and unusual in violation of the Eighth and Fourteenth Amendments. Also: Amicus Curiae brief, USSupCt., No. 03-633. Human Rights Committee of the Bar of England and Wales, et al. Merits Reply Brief of Appellant Martha Stewart, Testimonial co-defendant statement (Crawford hearsay) issues; perjury by government expert witness; more. Shepard v. United States, USSupCt., No. 03-9168. NACDL Amicus Curiae brief arguing that (I) Almendarez-Torres v. United States, 523 U.S. 224 (1998) was wrongly decided, has been eroded by subsequent cases, and should be overruled, and (II) in the alternative, the Court should reverse and clarify that the government bears the burden of proving prior convictions through reliable evidence that reflects adversarial testing. 2003 Auman v. State, Colo. Sup. Ct., No. 02SC885, filed 6/4/03. In the instant case, the lack of a causal link between the defendant's actions and murder committed by third-party after defendant was already in police custody does not support felony murder conviction; causation must be an element of proof for felony murder because it restricts the reach of the felony murder rule to those cases where defendant's liability is consistent with established principles of criminal responsibility. 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. 2002 In Re Appeal from July 19, 2002 Decision of the United States Foreign Intelligence Surveillance Court, U.S. Foreign Intelligence Surveillance Ct. of Rev., No. 02-001; filed 9/19/2002. Fourth Amendment Search & Seizure – Probable Cause – Electronic Surveillance – Foreign Intelligence Information. Amicus curiae brief of the National Association of Criminal Defense Lawyers in support of a 2002 decision of the United States Foreign Intelligence Surveillance Court imposing certain “minimization requirements” on an order authorizing electronic surveillance of an “agent of a foreign power” who is a American citizen. Argument: The Fourth Amendment requires a warrant and probable cause to conduct electronic surveillance of an American citizen where the “primary” purpose of the surveillance is criminal investigation, even if the collection of foreign intelligence information is a “significant” secondary purpose. The USA PATRIOT Act in 2001 unconstitutionally amends the Foreign Intelligence Surveillance Act (FISA) to permit the Department of Justice (DOJ) to conduct warrantless electronic surveillance of an American citizen when foreign intelligence is a “significant purpose” rather than the “primary purpose.” FISA’s so-called “privacy protections” are “illusory” and do not “justify abandoning the Fourth Amendment warrant and probable cause requirements.” Authors: John D. Cline and Zachary A. Ives, Freedman, Boyd, Daniels, Hollander, Goldberg, & Cline P.A., Albuquerque, NM; Joshua Dratel, New York, NY.
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