Alleyne v. United States, U.S. Sup. Ct., No. 11-9335, decision below 457 Fed.Appx. 348 (4th Cir. 2011), brief filed 11/21/12. Apprendi—Sixth Amendment—Sentencing—Firearms. Amicus curiae brief of the National Association of Criminal Defense Lawyers and the National Association of Federal Defenders in support of Petitioner. Question presented: Whether this Court’s decision in Harris v. United States, 536 U.S. 545 (2002) should be overruled? Argument: “Harris held that the Apprendi rule did not apply to the fact of brandishing in § 924 (c)(1)(A). One reason Harris was wrongly decided is that Apprendi applies to facts that dictate mandatory-minimum sentences. Another reason Harris was wrongly decided is that § 924 (c)(1)(A) establishes fixed-term sentences –contrary to the Harris Court’s unexamined assumption that it creates sentencing ranges—and thus a finding of ‘brandishing’ is subject to the Apprendi rule because it raises the statutory maximum from five to seven years.” (Br. at 23) (citations omitted) Authors: John B. Owens, et al., Munger Tolles & Olson LLP, Los Angeles, CA; Jonathan D. Hacker, O’Melveny & Myers, Washington, DC; Sarah Gannett, National Association of Federal Defenders, Philadelphia, PA.
Allshouse v. Pennsylvania, U.S. Sup. Ct., No. 11-1407, case below 36 A.3d (Pa. 2012), brief filed 6/22/12. Sixth Amendment—Confrontation—Crawford—Statements to Child Social Workers. Amicus curiae brief of the National Association of Criminal Defense Lawyers, the Pennsylvania Association of Criminal Defense Lawyers, the Defender Association of Philadelphia, and the Public Defender Association of Pennsylvania in support of the petition for certiorari. Argument for granting the writ: Statements to child services workers are testimonial in nature. Child services workers are under a legal obligation to submit detailed reports to law enforcement officials when they suspect abuse. This legal obligation, as well as their role in law enforcement investigations, shapes their interviews, even though children are particularly susceptible to suggestion during questioning. Since the primary purpose of child services workers’ investigations is to gather evidence for use in future criminal prosecutions, statements of questionable reliability made to them are testimonial under the Sixth Amendment’s Confrontation Clause. Authors: Stephen A. Miller and Brian Kint, Cozen O’Connor, Philadelphia, PA and Jeffrey T. Green, Sidley Austin, Washington, DC.
Arizona v. United States, U.S. Sup. Ct., No. 11-182, decision below 641 F.3d 339 (9th Cir. 2011), brief filed 3/26/12. Search and Seizure—Racial Profiling—State Immigration Law. Amicus curiae brief of Arizona Attorneys for Criminal Justice and the National Association of Criminal Defense Lawyers in support of the respondent, United States of America. Background: Arizona’s Senate Bill 1070 created new criminal offenses and new authorizations for police officers in Arizona to detain and arrest persons suspected of being in the United States illegally. Section 2 modified Ariz. Rev. Stat. § 11-1051(B) so that officers would be required to determine the immigration status of a person stopped, detained, or arrested, if there is a reasonable suspicion that the person is unlawfully present in the United States, and officers would be required to verify the immigration status of any person arrested prior to releasing the person. Section 3 created a new statute, Ariz. Rev. Stat. § 13-1509, creating a crime for the failure to apply for or carry alien registration papers. Section 5 created a new statute, Ariz. Rev. Stat. § 13-2928(C), creating a crime for an unauthorized alien to solicit, apply for, or perform work. Section 6 modified Ariz. Rev. Stat. § 13-3883(A)(5) to authorize warrantless arrest of a person where there is probable cause to believe the person has committed a public offense that makes the person removable from the United States. All of these portions of SB 1070 were enjoined by the District Court,2 and that order was affirmed by the United States Court of Appeals for the Ninth Circuit. Argument: SB 1070 cannot be enforced without racially profiling Latinos in violation of the Fourth Amendment’s protection against unreasonable searches and seizures and the Fourteenth Amendment’s Equal Protection Clause. SB 1070 is an unconstitutional “stop-and-identify” law that converts detentions into de facto arrests where officers rely on hunches and other impermissible factors in assuming that a person is in the country illegally. While not all Arizona law enforcement is unmindful of the state’s citizen’s Fourth and Fourteenth Amendment rights, systematic abuses of the law include Maricopa County’s “immigration sweeps” where the sheriff’s department conduct dragnet operations over large groups of people of Latino heritage and arrest first and ask questions later. Author: David J. Euchner, Pima County Public Defender’s Office, Tucson, AZ.
Bailey v. United States, No. 11-770; 652 F.3d 297 (2d Cir. 2011), brief filed 1/19/12, cert. granted 6/4/12. Search and Seizure—Search Warrant Execution—Seizure of Persons. Amicus curiae brief of the National Association of Criminal Defense Lawyers in support of the petition for certiorari. Question Presented: Whether, pursuant to Michigan v. Summers, police officers may detain an individual incident to the execution of a search warrant when the individual has left the immediate vicinity of the premises before the warrant is executed. Brief argues that the broad, categorical authorization of police conduct approved in Summers is far afield of the typical Fourth Amendment reasonableness analysis exemplified in Terry v. Ohio, and that the Court should grant certiorari to clarify and confirm limits on the Summers rule. Authors: Anna-Rose Mathieson, O’Melveny & Myers, San Francisco, CA, and Jonathan Hacker, O’Melveny & Myers, Washington, DC.
Boyer v. Louisiana, U.S. Sup. Ct., No. 11-9953, decision below 56 So.3d 1119 (La. Ct. App. 2011), brief filed 11/26/12. Sixth Amendment—Right to Counsel—Indigent Defense Funding and Caseloads—Speedy Trial. Amicus curiae brief of the National Association of Criminal Defense Lawyers and Pascal F. Calogero, Jr., Former Chief Justice, Louisiana Supreme Court in support of Petitioner. Question presented: Whether a state's failure to fund counsel for an indigent defendant for five years, particularly where failure was the direct result of the prosecution's choice to seek the death penalty, should be weighed against the state for speedy trial purposes? Argument: “We show below that the lack of funding that caused Petitioner’s prosecution to be delayed for five years did indeed reflect a systemic breakdown in the public defender system – in Louisiana in general and in Calcasieu Parish in particular. That breakdown was the direct and foreseeable result of deliberate decisions made and actions taken over a period of years by state and local officials. Hence those five years not only could but should be charged to the state under Barker and Brillon. A contrary ruling would encourage states to disregard indigent defendants’ Sixth Amendment rights, including their right to a speedy trial.” (Br. at 3.) Authors: William F. Sheehan, Andrew Hudson, Hong-An Vu, and Audrey M. Lin, Goodwin Proctor LLP, Washington, DC; Barbara Bergman, Albuquerque, NM.
Brooks v. United States, U.S. Sup. Ct., No. 12-218, decision below 681 F.3d 678 (5th Cir. 2012), brief filed 9/19/12. Defense Witnesses—Self-Incrimination—Immunity. Amicus curiae brief of the National Association of Criminal Defense Lawyers in support of the petition for certiorari; joint brief also filed in support of the petition in Walton v. United States, No. 12-5847. Question presented: Under what circumstances may a trial court grant, or compel the prosecution to grant, use immunity to a witness who has essential exculpatory evidence unavailable from other sources but who invokes his Fifth Amendment privilege against self-incrimination? Author: John D. Cline, San Francisco, CA.
Chaidez v. United States, U.S. Sup. Ct., No. 11-820, decision below, 655 F.3d 684 (7th Cir. 2011), brief filed 1/30/12. Retroactivity—Ineffective Assistance of Counsel—Immigration Law—Collateral Consequences. Amicus curiae brief of the National Association of Criminal Defense Lawyers, National Immigration Project of the National Lawyers Guild, Immigrant Legal Resource Center and Immigrant Defense Project in support the of the petition for writ of certiorari. Question presented: In Padilla v. Kentucky, 130 S. Ct. 1473 (2010), this Court held that criminal defendants receive ineffective assistance of counsel under the Sixth Amendment when their attorneys fail to advise them that pleading guilty to an offense will subject them to deportation. The question presented is whether Padilla applies to persons whose convictions became final before its announcement. Argument for granting the writ: The question is exceptionally important because of the deepening conflict over the retroactivity of Padilla v. Kentucky imposes severe consequences on countless non-citizens and causes confusion in the enforcement of federal immigration law. Authors: Jeffrey S. Trachtman, et al., Kramer Levin Naftalis & Frankel LLP, New York, NY.
Clapper v. Amnesty International USA, U.S. Sup. Ct., No. 11-1025, case below 638 F.3d 118 (2d Cir. 2011), brief filed 9/25/12. Electronic Surveillance—Foreign Intelligence Surveillance Act (FISA)—Injunctions—Standing. Amicus curiae brief of the National Association of Criminal Defense Lawyers in support of respondents. Background: Section 702 of the Foreign Intelligence Surveillance Act of 1978, 50 U.S.C. 1881a (Supp. II 2008)-referred to here as Section 1881a - allows the Attorney General and Director of National Intelligence to authorize jointly the "targeting of [non-United States] persons reasonably believed to be located outside the United States" to acquire "foreign intelligence information," normally with the Foreign Intelligence Surveillance Court's prior approval of targeting and other procedures. 50 U.S.C. 1881a(a), (b), (g)(2) and (i)(3); cf. 50 U.S.C. 1881a(c)(2). Two of the plaintiff-respondents in this case are criminal defense lawyers for whom confidentiality is essential in their work. They are seeking both a declaration that Section 1881a is unconstitutional and an injunction permanently enjoining any foreign-intelligence surveillance from being conducted under Section 1881a. Argument: In light of every attorney’s duty of confidentiality, the petitioners, both “United States persons,” are wrong to contend these plaintiff-respondents allege merely “speculative” and/or “self-inflicted injuries” from surveillance under the FISA Amendments Act (FAA), §1881a. FISA surveillance targets regions, persons and subjects heavily implicated by matters in which the respondents serve as defense counsel. They thus must choose between foregoing international communications about sensitive matters or incurring the expense and burden of traveling overseas for in-person communication. The court of appeals should be affirmed. Author: John D. Cline, San Francisco, CA and Joshua Dratel, New York, NY.
Descamps v. United States, U.S. Sup. Ct., No. 11-9540, decision below 466 Fed.Appx. 563 (9th Cir. 2012), brief filed 10/31/12. Sentencing Enhancement—Armed Career Criminal Act (ACCA)—Burglary—Modified Categorical Approach—Missing-Element Statutes. Amicus curiae brief of the National Association of Criminal Defense Lawyers and the National Association of Federal Defenders in support of Petitioner. Question presented: Whether the Ninth Circuit's ruling in United States v. Aguila-Montes De Oca, 655 F.3d 915 (9th Cir. 2011), (En Banc) that a state conviction for burglary where the statute is missing an element of the generic crime, may be subject to the modified categorical approach, even though most other Circuit Courts of Appeal would not allow it. Argument: The Ninth Circuit construed the Supreme Court’s Modified Categorical Approach to permit a dramatic exception to the Categorical Approach’s limited elements-based inquiry, but the Modified Categorical Approach does not apply to missing-element statutes. Applying the Modified Categorical Approach to missing-element statutes would render the ACCA unconstitutional in many applications and poses significant practical difficulties and risks manifest unfairness. If there is no way to distinguish among applications of the Modified Categorical Approach, it should be abandoned, not expanded. Authors: Kevin K. Russell, Goldstein & Russell, P.C., Washington, DC; Jeffrey L. Fisher and Pamela S. Karlan, Stanford Law School Supreme Court Litigation Clinic, Stanford, CA.
Dorsey v. United States and Hill v. United States, U.S. Sup. Ct., Nos. 11-5683 & 11-5721 (consolidated cases), decision below 635 F.3d 336 (7th Cir. 2011), argument 4/17/12. Federal Sentencing—Crack-Powder Disparity—Fair Sentencing Act—General Savings Statute. Amicus curiae brief of the National Association of Criminal Defense Lawyers and the National Association of Federal Defenders in support of petititoners. Argument: It was error for the sentencing courts in these cases to not sentence the defendants pursuant to the Fair Sentencing Act of 2010, where the defendants were sentenced after the effective date of the FSA. The General Savings Statute, 1 U.S.C. §109, does not prevent the application of the Fair Sentencing Act to pending proceedings, because the application of an ameliorated penalty does not come within the technical abatement rule. Technical abatement occurs because at common law, abatement by repeal included a statute’s repeal and reenactment with different penalties, and is the complete deprivation of the power to prosecute— the scenario Sec. 109 was written to prevent. Application of the FSA’s penalties to ongoing prosecutions does not create a technical abatement at common law; therefore the General Savings provision of Sec. 109 does not apply. Authors: Peter Goldberger, Ardmore, PA, Jeffrey T. Greene and Clayton G. Northouse, Sidley Austin LLP, Washington, DC, Sarah O’Rourke Schrup, Northwestern Univ. Supreme Court Practicum, Chicago, IL, and S. David Mitchell, Univ. of Missouri School of Law, Columbia, MO.
Elashi v. United States, U.S. Sup. Ct., No. 11-1390, case below sub nom.United States v. El-Mezain, 664 F.3d 467 (5th Cir. 2011), brief filed 6/20/12. Sixth Amendment—Confrontation—Secret Witnesses. Amicus curiae brief of the National Association of Criminal Defense Lawyers in support of the petition for certiorari. Argument for granting the writ: At trial, the court held the Confrontation Clause did not require that the true identities of two government witnesses, a legal advisor for the Israeli Security Agency and an employee of the Israeli Defense Forces be revealed to the defense, and the Fifth Circuit affirmed. Petitioners argue that the writ should be granted because (1) the courts of appeals have split as to whether the Confrontation Clause precludes anonymous testimony; (2) the rule adopted by the Fifth Circuit is inconsistent with the Supreme Court’s prior decisions, particularly Smith v. Illinois (1968); (3) this case presents an excellent set of facts on which to examine the issue; and (4) the issue is likely to recur. The right to know one’s accusers lies at the heart of both the history and practice of the right to confrontation. See Crawford v. Washington (2004). For these reasons, the issue of whether the government may withhold the identity of key witnesses it chooses to present at trial, including experts, should not await another case. Authors: Jean-Jacques Cabou, Perkins Coie LLP, Phoenix, AZ and Nathan Christensen, Perkins Coie LLP, Portland, OR.
Evans v. Michigan, U.S. Sup. Ct., No. 11-1327, case below 810 N.W.2d 535 (Mich. 2012), brief filed 08/22/12. Erroneous Acquittal—Double Jeopardy. Amicus curiae brief of the National Association of Criminal Defense Lawyers. Argument: An acquittal by the court is always a bar to further proceedings for the same offense. The rule applies even if the acquittal resulted “from erroneous evidentiary rulings or erroneous interpretations of governing legal principles.” United States v. Scott, 437 U.S. 82, 89 (1978). An error of law leading to an acquittal “affects the accuracy of that determination, but it does not alter its essential character.” Id.Authors: George C. Thomas, III, Rutgers School of Law, Newark, NJ, and David M. Porter, NACDL, Sacramento, CA.
Florida v. Harris, U.S. Sup. Ct., No. 11-817, decision below 71 So.3d 756 (Fla. 2011), brief filed 9/4/12. Search and Seizure—Dog Sniffs—Motor Vehicles. Amicus curiae brief of the National Association of Criminal Defense Lawyers, Florida Ass’n of Criminal Defense Lawyers, the American Civil Liberties Union and the ACLU of Florida in support of the respondent. Argument: An alert by a “trained” or “certified” drug detection dog by itself is insufficient to establish probable cause; evidence of a dog’s reliability is but one factor in a totality-of-the-circumstances analysis recommended by the Florida Supreme Court. Real-world data demonstrate that even trained or certified dogs have a high rate of false alerts; brief lists a number of different factors relating to a drug dog’s reliability. Authors: Danielle Spinelli, Wilmer Cutler Pickering Hale and Door LLP, Washington, DC, et al. (see brief cover for complete list of authors).
Florida v. Jardines, U.S. Sup. Ct., No. 11-564, decision below 73 So.3d 34 (Fla. 2011), brief filed 7/9/12. Search and Seizure—Dog Sniffs—Private Residence. Amicus curiae brief of the National Association of Criminal Defense Lawyers and the Florida Association of Criminal Defense Lawyers in support of the respondent. Argument: Acting on a tip, police conducted a warrantless “canine sniff” with a drug detection dog of the front door of the defendant’s residence and obtained a search warrant based on the dog’s alert. Marijuana was found growing in the defendant’s home. The Florida Supreme Court held that the “sniff test” was itself a search requiring probable cause. Amici argue that persons have a heightened expectation of privacy in their homes and that dog sniffs are highly intrusive, since the sniff can reveal much more than the mere presence or absence of contraband and is a search within the meaning of the Fourth Amendment. Absent exigent circumstances, such a suspicionless search of a home is inherently unreasonable. Further, allowing suspicionless dog sniffs of houses would permit indiscriminate sweeps of residential neighborhoods, a practice some law enforcement officials have already begun to employ. Authors: Danielle Spinelli, et al., Wilmer Cutler Pickering Hale and Dorr LLP, Washington, DC; Jonathan D. Hacker, O’Melveny & Myers LLP, Washington, DC; Norman L. Reimer and Mason C. Clutter, NACDL, Washington, DC.
Gabelli v. Securities and Exchange Commission, U.S. Sup. Ct., No. 11-1274, decision below 653 F.3d 49 (2nd Cir. 2011), brief filed 11/16/12. Statutes of Limitations—Statutes of Repose--Penalty Actions—Prosecutorial Abuse. Amicus curiae brief of the National Association of Criminal Defense Lawyers in support of Petitioners. Question presented: Where Congress has not enacted a separate controlling provision, does the government's claim first accrue for purposes of applying the five-year limitations period under 28 U.S.C. § 2462 when the government can first bring an action for a penalty? Argument: The statute of limitations in government penalty actions is not extended by a discovery rule. The Second Circuit’s rule will hamper the ability of individuals and corporations to arrange their affairs. And repose for penalty actions supplies an important check against abuses of enforcement power. Authors: Paul R. Q. Wolfson, Shirley Cassin Woodward, Wilmer Cutler Pickering Hale and Dorr LLP, Washington, DC; Joshua L. Dratel, New York, NY.
Henderson v. United States, U.S. Sup. Ct., No. 11-9307, decision below at 646 F.3d 223 (5th Cir. 2011), brief filed 9/6/12. Appeals—Plain Error—Failure to Object at Trial. Amicus curiae brief of the National Association of Criminal Defense Lawyers in support of petitioner. Argument: Federal Rule of Criminal Procedure 52(b), which provides that “[a] plain error that affects substantial rights may be considered even though it was not brought to the court’s attention,” permits plainness to be measured at the time of appeal when the law was settled at the time of trial. Johnson v. United States, 520 U.S. 461 (1997). Nothing in the text of the rule, nor does any policy justify, varying from the Johnson “time of appeal” rule when the law was unsettled at the time of the trial (a question that was left open in Johnson). The “time of appeal” rule serves Rule 52(b)’s policy of allowing obvious injustices to be corrected on appeal; serves the goal of treating similarly situated defendants equally; and avoids wasteful appellate litigation over whether particular issues were “settled” or “unsettled” at the time of trial. Authors: John D. Cline, San Francisco, CA, and Barbara E. Bergman, Albuquerque, NM.
Johnson v. Williams, U.S. Sup. Ct., No. 11-465, decision below Williams v. Cavazos, 646 F.3d 626 (9th Cir. 2011), brief filed 6/5/12. Habeas—AEDPA—28 U.S.C. § 2254(d)—State and Federal Law Claims. Amicus curiae brief of the National Association of Criminal Defense Lawyers in support of Respondent. Argument: AEDPA does not restrict habeas review of a properly presented federal claim that the state courts overlooked and ignored. If a state court issued an opinion that failed to address a properly presented federal claim, a habeas court should not presume that the claim was nonetheless adjudicated. Contrary to the warden’s alternative argument, the adjudication of a state-law claim does not adjudicate a factually related, but omitted, federal-law claim. Authors: C. Kevin Marshall, Yaakov M. Roth, and Jennifer M. Bradley, Jones Day, Washington, DC; David M. Porter, Sacramento, CA.
Kaley v. United States, U.S. Sup. Ct., No. 12-464, decision below 677 F.3d 1316 (11th Cir. 2011), brief filed 11/14/12. Forfeiture—Due Process—Right to Counsel. Amicus curiae brief of the National Association of Criminal Defense Lawyers in support of petition for writ of certiorari. Question presented: Whether the Supreme Court should take the appeal and clarify that” a grand jury’s probable cause determination does not relieve the government of any of its usual burden, when it seeks to restrain or seize property, of showing at a prompt, adversarial hearing that it has good cause to do so.” (Br. at 2.) Argument: “Whether effected via criminal-forfeiture provisions, or through parallel civil-forfeiture proceedings, restraining defendants assets during a prosecution implicates a structural right and risks inflicting unknowable injustices….The circuits holding that a grand jury’s ex parte probable cause determination is unassailable have unduly compromised the structural right to counsel.” (Br. at 2 & 5.) Author: University of Miami School of Law Professor Ricardo J. Bascuas, Miami, FL.
King v. United States, U.S. Sup. Ct., No. 11-959, decision below 660 F.3d 1071 (9th Cir. 2011), brief filed 3/7/12. False Statements – Federal Jurisdiction. Amicus curiae brief of the National Association of Criminal Defense Lawyers, the Cato Institute and the Texas Public Policy Foundation in support of the petition for certiorari. Question presented: Should an individual face federal criminal liability under 18 U.S.C. §1001 for a false statement made to a person unconnected to the federal government at a time when no federal investigation exists merely because the statement concerns an issue over which the federal government may exercise discretionary regulatory authority? Argument: 18 U.S.C. § 1001 criminalizes the knowing and willful making of materially false statements in any matter within the jurisdiction of the executive, legislative, or judicial branch of the Government of the United States. Judicial expansions of §1001 have invited prosecutors to stretch the statute beyond its proper reach and an improperly broad definition of a “matter within the jurisdiction” clause presents significant risks of overcriminalization and misuse, resulting in wrongful convictions. Authors: Andrew T. Wise and Kevin G. Mosley, Miller & Chevalier Chtd., Washington, DC.
Mehanna v. United States, 1st Circuit, No. 12-1461; decision below, Criminal Action No. 09-10017-GAO, 2011 WL 3652524 (D. Mass. Aug. 19, 2011), brief filed 12/26/12. Conspiracy—Material Support—First Amendment---Petrozziello---Dellosantos. Amicus curiae brief of the National Association of Criminal Defense Lawyers in support of Appellant Tarek Mehanna and reversal of his conviction. Argument: “The district court misapplied First Circuit and United States Supreme Court conspiracy law. Moreover, these errors go not only to the heart of the substantive criminal law, but also to the First Amendment’s protection. From the scope of the indictment, through the court’s evidentiary rulings [admission of inflammatory evidence], and finally, its instructions, the result was a prosecution that effectively criminalized unpopular thought and expression unmoored from criminal conduct.” Authors: Nancy Gertner, Professor of Law at Harvard Law School, Cambridge, MA; David M. Porter, Sacramento, CA.; Steven R. Morrison, Assistant Professor at University of North Dakota School of Law, Grand Forks, ND.
Miller v. Louisiana, U.S. Sup. Ct., No. 12-162, decision below 83 So.3d 178 (La. App. 2011), brief filed 9/4/12. Verdicts—Juror Unanimity. Amicus curiae brief of the National Association of Criminal Defense Lawyers, the Louisiana Association of Criminal Defense Lawyers, and the Oregon Association of Criminal Defense Lawyers in support of the petition for certiorari. Argument: The petition should be granted in order to decide whether the Sixth Amendment and Fourteenth Amendments require unanimity in state criminal cases. The traditional unanimity requirement serves as a basic component of the Sixth Amendment’s jury guarantee, which is not currently being afforded to accused persons in Louisiana and Oregon. Amici urge that the petition be granted in order to address whether the Court’s decisions in Apodaca v. Oregon, 406 U.S. 404 (1972) and Johnson v. Louisiana, 406 U.S. 356 (1972) properly interpreted the Sixth Amendment jury trial guarantee to permit non-unanimous juries, which were unknown at the time of the nation’s founding. Authors: Timothy P. O’Toole and Mia P. Haessly, Miller and Chevalier, Chartered, Washington, DC.
Missouri v. McNeely, U.S. Sup. Ct., No. 11-1425, decision below 358 S.W.3d 65 (Mo. Jan. 17, 2012), brief filed 12/17/12. Fourth Amendment—Exigent Circumstances Exception—DUI—Blood Sample—Warrant Requirement. Amicus curiae brief of the National College for DUI Defense and the National Association of Criminal Defense Lawyers in support of Respondent. Question presented: Whether a law enforcement officer may obtain a nonconsensual and warrantless blood sample from a drunk driver under the exigent circumstances exception to the Fourth Amendment warrant requirement based upon the natural dissipation of alcohol in the bloodstream. Argument: Per se warrantless blood draws are unnecessary as (i) states already successfully prosecute thousands of drunk driving cases after police obtain warrants to draw blood, (ii) technological advances allow police to obtain warrants in minutes, (iii) states have e-warrant procedures, and (iv) telephonic warrants also may be granted in minutes. Per se warrantless blood draws are unreasonable and unconstitutional. The warrant requirement checks police power in DUI cases. And search warrants protect officers and drivers. Authors: Jeffrey T. Greene and Jeffrey S. Beelaert, Sidley Austin LLP, Washington, DC; Sarah O’Rourke Schrup, Northwestern Univ. Supreme Court Practicum, Chicago, IL; Leonard R. Stamm, Goldstein & Stamm P.A., Greenbelt, MD.
Pickering v. Colorado, U.S. Sup. Ct., No. 11-870, case below, ___ P.3d ___, 2011 WL 4014400 (Colo. 9/12/11), brief filed 02/13/12. Defense – Self-Defense – Intent – Due Process. Amicus curiae brief of the National Association of Criminal Defense Lawyers in support of the petition for certiorari. Argument: Element-negating defenses, such as self-defense, often negate the mens rea needed to sustain a conviction, and due process should require the prosecution to disprove the defense beyond a reasonable doubt. Authors: Timothy O’Toole and Jeffrey Hahn, Miller & Chevalier Chtd, Washington, DC.
Pleau v. United States and Chafee v. United States, U.S. Sup. Ct., Nos. 11-223 & 11-230, decision below 680 F.3d 1 (1st Cir. 2012), brief filed 9/26/12. Interstate Agreement on Detainers (IAD)—Prisoners—Detainers—Habeas Corpus Ad Prosequendum. Amicus Curiae brief of the Rhode Island ACLU; National Association of Criminal Defense Lawyers; National Legal Aid & Defender Association; Office of the Federal Defender for the Districts of Rhode Island, Massachusetts and New Hampshire; Office of the Federal Defender of the District of Maine; Rhode Island Association of Criminal Defense Lawyers; and Colegio de Abogados de Puerto Rico in support of the petitions for certiorari. Background: The Interstate Agreement on Detainers, 18 U.S.C. app. 2, §2 (“the IAD”), which is binding on all states and the United States, empowers a prisoner in state custody, who is subject to a detainer by the United States, to ask the governor not to transfer him to federal custody to face charges in federal court. It also authorizes the governor to refuse to transfer the prisoner. In this case, after lodging a detainer for Rhode Island prisoner and petitioner Jason W. Pleau, the federal government requested temporary custody pursuant to the IAD to face federal charges. Mr. Pleau exercised his right under the IAD to ask Gov. Lincoln Chafee to refuse the request, and Gov. Chafee declined to transfer Mr. Pleau to federal custody. The United States then opted to circumvent the IAD by securing a writ of habeas corpus ad prosequendum for Mr. Pleau over his and the governor’s objections. The U.S. Court of Appeals for the First Circuit approved the writ, which allowed the federal government to avoid its obligations under the IAD. Argument: By allowing the United States to circumvent the IAD in this way, the First Circuit’s decision violated Mr. Pleau’s rights, threatened the IAD’s prisoner-protective scheme, and undermined its framework of cooperative federalism. Here, by using a writ to obtain custody of Mr. Pleau, the federal government ignored Governor Chafee’s right to refuse to transfer a prisoner from state custody and Mr. Pleau’s right to seek this refusal. In so doing, the federal government received the benefits of lodging a detainer without fulfilling its obligations as a party to the IAD. This is precisely what the Supreme Court disallowed in United States v. Mauro, 436 U.S. 340 (1978). By misinterpreting Mauro, the First Circuit returns detainer practice to the uncoordinated situation that existed before the IAD. Further, because Circuit Courts have decided this issue differently, uncertainty once again prevails. The brief argues that the Supreme Court should grant the petitions in this case to protect the rights that the IAD grants to prisoners, reinforce its interpretation of the IAD in Mauro, and restore order and predictability under the IAD among the Circuits. Authors: Anthony D. Mirenda, Daniel N. Marx, Jennifer S. Behr, Eric A. Haskell, Foley Hoag LLP, Boston, MA.
Public Defender, Eleventh Judicial Circuit of Florida v. State, Fla., Nos. 09-1181 & 10-1349, brief filed 1/10/12. Sixth Amendment Right to Counsel – Indigent Defense – Caseloads. Amicus curiae brief of the Florida Association of Criminal Defense Lawyers, Public Interest Law Section of the Florida Bar, University of Miami School of Law Center for Ethics and Public Service, National Association of Criminal Defense Lawyers, Brennan Center for Justice, and the Constitution Project in support of petitioner. Argument: The petitioner and assistant public defenders for the 11th Judicial Circuit have shown that their excessive caseloads imminently threaten not only to create conflicts of interest but also to deprive current and former indigent clients of constitutionally-effective assistance of counsel and are therefore entitled to limit further representations without waiting for those threats to materialize; extensive evidence presented in the trial court establishes both ongoing violations of the Sixth Amendment rights of petitioner’s clients and an unacceptable risk of future violations; the intermediate court of appeal improperly limited the scope of the Sixth Amendment as it applies to systemic deficiencies. Authors: Michael Ufferman, Tallahassee, FL, and Sonya Rudenstine, Gainesville, FL.
Rhodes v. Judiscak, U.S. Sup. Ct., No. 11-1177, ___ F.3d ___, 2012 WL 171917 (10th Cir. 1/23/12.), brief filed 4/26/12. Habeas Corpus—Prisons—Sentence Computation—Supervised Release. Amicus curiae brief of the National Association of Criminal Defense Lawyers in support of the petition for writ of certiorari. Argument for granting the writ: Petitioner filed a habeas challenge to the BOP’s calculation of the actual length of his sentence, but when the district court failed to act on his petition until after the petitioner had already been placed on supervised release. The district court dismissed his case as moot, concluding it had no authority to shorten the length of his supervised release and the U.S. Court of Appeals for the 10th Circuit affirmed. The courts of appeal are split whether a federal prisoner’s habeas petition challenging the length of his incarceration remains justiciable while he is on supervised release. Moreover, the Federal Bureau of Prisons is responsible for calculating inmate sentences; the Tenth Circuit’s rule would allow the BOP to insulate its sentence computations from review by dragging out litigation until an inmate is released. Authors: Thomas S. Leatherbury and Kimberly R. McCoy, Vinson & Elkins LLP, Dallas, TX.
Robbins v. Texas, U.S. Sup. Ct., No. 11-777, case below, ___ S.W.3d ____, 2011 WL 2555665 (Tex. June 29, 2010), brief filed 1/20/12. Habeas Corpus—Due Process—New Scientific Evidence—Standard of Review. Amicus curiae brief of the National Association of Criminal Defense Lawyers in support of the petition for certiorari. Argument: Neal Robbins was convicted of capital murder of his girlfriend’s 17-month-old child based on the testimony of a medical examiner who later re-evaluated her opinion and swears that she can no longer stand by her testimony that the child died of asphyxiation. Lower courts are divided as to whether new scientific evidence warrants a new trial. The Court should reverse the Texas Court of Criminal Appeals and grant Robbins a new trial for three reasons: (1) scientific evidence plays an increasingly important role in criminal trials, and courts need guidance on how best to account for evidence that is shown to be unreliable after conviction; (2) the holding of the court of criminal appeals violates due process by heightening the burden of proof non the petitioner in a post-conviction proceeding to an impossibly high level; and (3) this case is the right vehicle for review of this issue because it presents a situation where the scientific evidence was the only direct evidence of homicide and thus central to Robbins’ conviction and was recanted in full by the expert witness. Authors: Nancy Winkelman, Samuel W. Silver and Sara A. Aliabadi, Schnader Harrison Segal & Lewis LLP, Philadelphia, PA.
Rubashkin v. United States, U.S. Sup. Ct., No. 11-1203, decision below 655 F.3d 849 (8th Cir. 2011). Judicial Misconduct—Motion for New Trial. Amicus curiae brief of the National Association of Criminal Defense Lawyers and the Aleph Institute in support of the petition for certiorari. Argument: Extensive ex parte pretrial contacts between the trial judge in the prosecutor in planning the defendant’s arrest and prosecution, coupled with the judge’s failure to disclose those contacts, raise fundamental substantive and procedural due process issues. The court of appeals’ requirement that grounds for granting a new trial based on newly-discovered evidence of judicial misconduct would probably lead to an acquittal was erroneous and the decision below should be reversed. Author: Nathan M. Crystal, Crystal & Giannoni-Crystal, LLC, Charleston, SC.
Salinas v. Texas, U.S. Sup. Ct., No. 12-246, decision below 369 S.W.3d 176 (Tex. 2012), brief filed 9/27/12. Self-Incrimination—Fifth Amendment—Pre-Arrest Silence—Admissibility—Adverse Inferences. Amicus curiae brief of the National Association of Criminal Defense Lawyer in support of the petition for certiorari. Background: In the case below, the Texas Court of Criminal Appeals held that the Fifth Amendment right against self-incrimination does not apply to pre-arrest, pre-Miranda silence, and therefore such silence in response to police questioning was admissible as evidence of guilt. Argument: If a defendant’s pre-arrest silence in the face of police questioning may be admitted as evidence of guilt, the defendant faces a “cruel trilemma.” He can answer the police questions truthfully, possibly incriminating himself. He can lie to law enforcement, itself often a crime.3 Or he can remain silent and risk that his silence will be used against him as evidence of his guilt. The privilege against self-incrimination would be hollow if its exercise could be taken as equivalent to a confession of guilt. Authors: Craig D. Singer and Jared L. Hubbard, Williams & Connolly LLP, Washington, DC, and Jeffrey T. Green, Sidley Austin LLP, Washington, DC.
Shaygan v. United States, U.S. Sup. Ct., No. 12-44, case below 652 F.3d 1297 (11th Cir. 2011), reh’g en banc denied, 676 F.3d 1237 (11th Cir. 2012); brief filed 8/10/12. Attorney’s Fees—Hyde Amendment—Federal Court—Right to Counsel. Amicus curiae brief of the National Association of Criminal Defense Lawyers in support of the petition for certiorari. Argument: Fee awards under the Hyde Amendment, which allow acquitted defendants to recover some of the financial damage they incur from having faced a criminal prosecution undertaken by the government which has been shown to be “vexatious, frivolous, or in bad faith,” are a needed check against prosecutorial misconduct. The Hyde Amendment authorizes an award of attorney’s fees even where probable cause existed to support the filing of criminal charges; the Eleventh Circuit’s cramped interpretation of the statute will have a chilling effect on zealous advocacy, endangering defendants’ Sixth Amendment Right to Counsel. Authors: Paul R.Q. Wolfson, Shirley Cassin Woodward and Susan S. Friedman, Wilmer Cutler Pickering Hale and Dorr LLP, Washington, DC, and Jeffrey T. Green, NACDL, Washington, DC.
Simels v. United States, U.S. Sup. Ct., No. 11-947, decision below 654 F.3d 161 (2nd Cir. 2011), brief filed 2/28/12. Wiretapping—Suppression of Illegal Intercepts—Impeachment. Amicus curiae brief of the National Association of Criminal Defense Lawyers in support of the petition for certiorari. Argument: In the decision below, the Second Circuit held that the defendant’s testimony could be impeached with portions of an illegally obtained wiretap that the trial court had suppressed under Title III of the 1968 Omnibus Crime Act (18 U.S.C. §2515) (“the Wiretap Act”). In the context of Title III wiretap intercepts, the constitutional protections of the Fourth Amendment are a floor, not a ceiling; §2515 provides more protection than the Fourth Amendment in that the statute provides that illegally obtained oral or wire communications shall not be “received in evidence in any trial.” The judicially-created impeachment exception created by the Second Circuit collides with the fundamental protections underlying Congress’s enactment of Title III. Author: Joshua L. Dratel, Dratel & Mysliwiec, P.C., New York, NY.
Simon v. City of New York, et al., 2nd Circuit, No. 11-5386, brief filed 7/19/12. Warrants—Material Witnesses. Amicus curiae brief of the National Association of Criminal Defense Lawyers, New York State Association of Criminal Defense Lawyers, and American Civil Liberties Union Foundation in support of plaintiff-appellant. Background: Under Article 620 of the New York Criminal Procedure Law, a proceeding to adjudge a person a material witness is initiated by an ex parte application setting forth reasonable cause to believe an individual who possesses material information will not be responsive to a subpoena from the court or a grand jury. If the court is satisfied by the application, it may order the witness to appear for a hearing, or if convinced that the witness would not appear, it may “issue a warrant addressed to a police officer, directing such officer to take such prospective witness into custody . . . and to bring him before the court forthwith” for a material witness hearing. NYCPL 620(b). The statute does not permit a material witness to be detained for interrogation or any other purpose. Instead of being brought before the court “forthwith,” the plaintiff was detained for two days at the Queen’s County District Attorney’s Office and sued in federal court for false imprisonment. Argument: The district court incorrectly focused on the prosecutor’s absolute immunity for applying for the material witness warrant, rather than the plaintiff’s principle claim that the improper execution of the warrant caused her injury. It would be inappropriate to recognize absolute immunity where the prosecutor, and the detectives acting jointly with him, violated the terms of the warrant and the authorizing statute by detaining the witness for two days for interrogation and never taking her to court. Authors: Joel B. Rudin, New York, NY, Richard D. Willstatter, White Plains, NY, Lee Gelernt and Esha Bhandari, ACLU Foundation, New York, NY, and Katherine Desmoreau, ACLU Foundation, San Francisco, CA.
Smith v. United States, U.S. Sup. Ct., No. 11-8976, case below 651 F3d 30, brief filed 8/27/12. Conspiracy—Defenses—Burden of Proof—Mens Rea. Amicus curiae brief of the National Association of Criminal Defense Lawyers. Argument: A defendant’s withdrawal from a conspiracy during the statute of limitations period negates and element of a conspiracy charge such that, once a defendant meets his burden of production that he did withdraw, the burden of proof rests with the government to prove beyond a reasonable doubt that he was a member of the conspiracy during the relevant period. The requirement that the prosecution prove the defendant’s guilt beyond a reasonable doubt is a defendant’s foremost safeguard against a wrongful conviction. The defendant’s withdrawal defense negated the “participation” element of the conspiracy, and relieving prosecutors of their burden to prove a defendant’s mental state substantially undermines the fairness of the trial by diluting one of the most important protections against wrongful convictions. Authors: Timothy P. O’Toole and Jeffrey Hahn, Miller & Chevalier, Chartered, Washington, DC.
Southern Union Co. v. United States, U.S. Sup. Ct., No. 11-94, case below 630 F.3d 17 (1st Cir. 2010), brief filed 1/19/12. Criminal Fines—Apprendi/Booker—Right to Jury Trial. Amicus curiae brief of the Chamber of Commerce of the United States and the National Association of Criminal Defense Lawyers in support of the petitioner, Southern Union Co. Argument: In cases where the defendant is a corporation, the penalty of conviction is necessarily a fine, because a corporation cannot be incarcerated; unlike most criminal cases, the fine is not merely part of or an alternative to the penalty, it is the penalty. The court of appeals erred in ruling that Apprendi v. New Jersey, which held that any fact, other than a prior conviction, that increases the penalty for a crime beyond the statutory maximum must be submitted to a jury and found beyond a reasonable doubt, does not apply to criminal fines. Authors: Benjamin C. Block and Mark D. Herman, Covington & Burling LLP, Washington, D.C., et al. NACDL’s amicus brief in support of the petition for certiorari, filed 8/19/11, is here.
State v. Norfolk, Mo., No. SC 92252, decision below _____ SW.3d _____, 2011 WL 5541791 (Mo.App. 2011), brief filed 3/21/12. Harmless Error—Admission of Inadmissible State Evidence—Right to Testify. Amicus curiae brief of the Missouri Association of Criminal Defense Lawyers and the National Association of Criminal Defense Lawyers. Argument: After the trial court erroneously admitted evidence (firearm, ammunition and marijuana) seized in violation of the Fourth Amendment, the defendant admitted under oath that the gun and marijuana were his. The court of appeals held that while the trial court clearly erred in denying Norfolk’s motion to suppress, given the defendant’s confession in open court, the error was harmless beyond a reasonable doubt. When evidence is erroneously admitted at trial, the defendant’s subsequent testimony cannot render that error harmless; Missouri’s harmless error rule regarding subsequent testimony has been overruled by the U.S. Supreme Court and makes little practical sense. Authors: Stewart Banner, UCLA Law School, Los Angeles, CA, Talmage E. Newton IV, Pleban & Petruska Law, LLC, St. Louis, MO, and Burton H. Shostak, Shostak Law LLC, Clayton, MO.
United States v. Alvarez, U.S. Sup. Ct., No. 11-210, case below, 617 F.3d 1198 (9th Cir. 2010), brief filed 1/20/12. Overcriminalization—First Amendment—“Stolen Valor Act”. Amicus curiae brief of the National Association of Criminal Defense Lawyers in support of respondent Xavier Alvarez. Argument: The Stolen Valor Act of 2005’s false claims provision, 18 U.S.C. §704(b), which makes it a crime when anyone "falsely represents himself or herself, * * * verbally or in writing, to have been awarded any decoration or medal authorized by Congress for the Armed Forces of the United States,” is constitutionally overbroad because it punishes speech protected under the First Amendment such as innocent mistakes, harmless misrepresentations, purely private speech, jokes, satire, and dramatic claims. Moreover, it lacks a mens rea requirement and the supposed harm it protects against is not supported by a substantial government interest; as such, it is a classic example of federal overcriminalization. Authors: Michael V. Schafler and Jeffery M. Chemerinsky, Caldwell Leslie & Proctor PC, Los Angeles, CA.
United States v. Behenna, U.S. C.A.A.F., No. 12-0030, decision below 70 M.J. 521 (Army C.C.A. 2011), brief filed 3/9/12. Military Law— Evidence—Brady Material—Government Expert’s Report Favorable to Defense. Amicus curiae brief of the National Association of Criminal Defense Lawyers in support of appellant. Argument: NACDL submits that the Brady violation in this case is not an isolated aberration, but rather is evidence of a systemic problem in military jurisprudence. Military prosecutors have a legal and ethical duty to seek justice, not convictions, and if trial counsel has a bona fide question as to whether or not something is or is not Brady material, it should be submitted to the military judge for resolution. Absent that, then any violation of Brady will be presumed to be prejudicial absent the government’s demonstration to the contrary by the beyond a reasonable doubt standard. Author: Donald G. Rehkopf, Jr., Brenna, Brenna & Boyce, PLLC, Rochester, NY.
United States v. Charles E. Coughlin, D.C. Cir., No. 11-3113, brief filed 12/14/12. Double Jeopardy—Issue Preclusion—Dowling---Acquitted Conduct Evidence . Amicus curiae brief of the National Association of Criminal Defense Lawyers in support of appellant. Argument: Contrary to the District Court’s interpretation, Dowling does not establish a blanket rule that the issue preclusion component of the Double Jeopardy Clause never operates to exclude evidence. At the very least, where issue preclusion serves to narrow the indictment on retrial, evidence of acquitted conduct may not be admitted as “intrinsic” evidence, unregulated by Federal Rule of Evidence 404(b), and without engaging in a careful balancing under Rule 403. Authors: Laura G. Ferguson & Timothy O’Toole, Miller & Chevalier Chartered, Washington, DC.
United States v. Katzin, 3rd Circuit, No. 12-2548, decision below, Criminal Action No. 11-226, 2012 WL 1646894 (E.D. Pa. May 9, 2012), brief filed 11/13/12. Fourth Amendment—GPS—Vehicles--Warrants—Probable Cause—Exclusionary Rule--Reasonable Suspicion--“Special Need” Searches—Automobile Exception--Privacy. Joint Amicus curiae brief of the American Civil Liberties Union Foundation, the ACLU Foundation of Pennsylvania, the Electronic Frontier Foundation, and the National Association of Criminal Defense Lawyers in support of affirmance of the district court. Argument: Tracking a car by physically attaching a GPS device to it requires a warrant based on probable cause, without exception. The District Court correctly applied the exclusionary rule because the FBI agents did not rely on binding appellate precedent. Authors: Ben Wizner, Catherine Crump, and Nathan Wessler, American Civil Liberties Foundation, New York, NY; Witold J. Walczak and Sara J. Rose, ACLU Foundation of Pennsylvania, Pittsburgh, PA; Hanni Fakhoury and Marcia Hoffman, Electronic Frontier Foundation, San Francisco, CA; and Peter Goldberger, Ardmore, PA, for NACDL.
United States. v. Llanez-Garcia, 6th Cir., No. 12-3585, decision below Case No. 1:11-cr-00177 (Hon. John R. Adams), 2011 WL 4073920 (N.D. Ohio, Sept. 13, 2011) & 2012 WL 1571522 (N.D. Ohio, May 3, 2012), brief filed 11/27/12. Rule 17(c)---Third-party Subpoenas---Criminal Discovery---Nixon test. Brief of Amici Curiae National Association of Criminal Defense Lawyers in Support of Interested Party-Appellant and Reversal of the District Court Decision. Argument: The Nixon test does not apply to Rule 17(c) subpoenas to third parties. The District Court sanctioned Ms. Migdal for issuing Rule 17(c) subpoenas to third parties. The Nixon test applies only to subpoenas issued to the prosecution. Rule 17(c) subpoenas by defendants to third-parties are proper where they are 91) reasonable, and (2) not unduly oppressive. The Bowman/Nixon rationale for limiting the scope of Rule 17(c) does not apply to Third-party subpoenas. A less stringent standard than the Nixon test comports with criminal discovery principles. At a minimum, the case law supporting Ms. Migdal’s interpretation confirms that her conduct was not sanctionable. Authors: Pierre H. Bergeron, Lauren S. Kuley, Squire Sanders (US) LLP, Cincinnati, OH; Candace C. Crouse, Strauss Troy, LPA, Cincinnati, OH.
United States v. Pleau (Lincoln D. Chaffee, Gov., Intervenor), 1st Cir., Nos. 11-1775 & 11-1782, on rehearing 662 F.3d 1 en banc, brief filed 2/21/12. Amicus curiae brief of ACLU Rhode Island, ACLU of Puerto Rico, ACLU of Maine, ACLU of Massachusetts, New Hampshire Civil Liberties Union, Office of the Federal Defender for the Districts of Rhode Island, Massachusetts and New Hampshire, National Association of Criminal Defense Lawyers, Rhode Island Association of Criminal Defense Lawyers, and Colegio de Abogados de Puerto Rico (also known as the Puerto Rico Bar Association) in support of Jason Wayne Pleau and supporting reversal of the decision below. Argument: The Interstate Agreement on Detainers is critically important to State and Federal prisoners subject to detainers based on untried charges. Enacted by Congress in 1970, the IAD created cooperative procedures by which prisoners and prosecutors may initiate the prompt disposition of untried charges. The United States is a party to the IAD, and when it chooses to proceed under the IAD by lodging a detainer for a State prisoner, it must comply with the IAD’s provisions, including the duty to respect a governor’s discretionary decision to refuse to transfer the prisoner to federal custody. Here, the United States charged Jason Pleau, lodged a detainer against him and then requested his temporary custody under the IAD. When the Rhode Island Governor refused, as Article IV(a) of the IAD entitled him to do, the United States tried to circumvent the Agreement by using a writ of habeas corpus ad prosequendum. As the Panel ruled, however, United States v. Mauro, 436 U.S. 340 (1978), precludes the United States from using a writ to evade its obligations under the IAD. Further, permitting the United States to opt-out of the IAD, after lodging a detainer, would undermine the integrity of the entire IAD process, cause the very problems for prisoners that the IAD was intended to alleviate, and frustrate the cooperative procedures that lie at the heart of the statute. Authors: Anthony D. Mirenda, et al., Foley Hoag LLP, Boston, MA.
United States v. Quinn, 3rd Circuit, No. 11-1733, case below Crim. No. 2-09-cr-00720-002 (E.D. Pa. May 17, 2011), brief filed 12/3/12. Right to Compel Witnesses—Immunity—Role of Prosecutor—Disclosure—Exculpatory Evidence. Brief on rehearing en banc for Amicus curiae brief of the National Association of Criminal Defense Lawyers in support of appellant. Questions presented: “Whether government speculation that a witness might commit perjury can override the defendant’s constitutional right of access to evidence that could contribute to the establishment of reasonable doubt?” And “[w]hether the Court should clarify the definition of ‘exculpatory and essential’ evidence described in United States v. Smith to include evidence that could contribute substantially to raising a reasonable doubt?” (Br. at 2.) Argument: The district court’s denial of Appellant’s motion to compel the testimony of co-defendant, which if granted could have conferred judicial immunity for that testimony was reversible error. “Government speculation that a witness might commit perjury cannot override the defendant’s constitutional right of access to evidence that could contribute to the establishment of reasonable doubt.” (Br. at 3-11.) “In reaffirming the defendant’s right to compel witness testimony, the court should make clear that ‘exculpatory and essential’ evidence is evidence that could contribute substantially to raising a reasonable doubt.” (Br. at 11-15.) Authors: Ellen C. Brotman and Erin C. Dougherty, Montgomery McCracken, Philadelphia, PA; Jenny Carroll, Seton Hall University School of Law, Newark, NJ.
United States v. Ring, D.C. Cir., No. 11-3100, brief filed 3/14/12. Fraud—Bribery—Honest Services. Amicus curiae brief of the National Association of Criminal Defense Lawyers and the Center for Competitive Politics in support of appellant. Argument: In Skilling v. United States (2010), the Supreme Court held that to prove “honest services” fraud under 18 U.S.C. §1346, the government must prove bribery and quid pro quo—an exchange of a thing of value and an official act taken in response. In this case, the district court’s instructions read the bribery requirement out of the statute, permitting the jury to convict the appellant without any showing of quid pro quo, but only a unilateral “intent to influence.” The lower court’s interpretation of the statute threatens to chill, even criminalize, a broad range of innocent conduct, particularly campaign contributions. Authors: Paul F. Enzinna and Evan N. Turgeon, Brown Rudnick LLP, Washington, DC, et al.
United States v. Vasquez, U.S. Sup. Ct., No. 11-199, decision below 635 F.3d 889 (7th Cir. 2011), brief filed 1/30/12. Appeals—Harmless Error—Sixth Amendment/Right to Trial by Jury. Amicus curiae brief of the National Association of Criminal Defense Lawyers in support of the petition for certiorari and urging reversal. Argument: “Harmless error” review must assess the effect of the error on the verdict, upon review of the entire record, and with the burden of proving harmlessness on the government ; the appellate court must assess the strength of the evidence with due consideration of the defendant’s Sixth Amendment jury trial right and the jury’s role as the factfinder. Author: John D. Cline, San Francisco, CA.
Walton v. United States, No. 12-5847, decision below 681 F.3d 678 (5th Cir. 2012), brief filed 9/19/12. Jury Instructions—Willful Blindness. Amicus curiae brief of the National Association of Criminal Defense Lawyers in support of the petition for certiorari; joint brief also filed in support of the petition in Brooks v. United States, No. 12-218. Question presented: Given the requirements of Global-Tech Appliances, Inc. v. SAB, S.A., 131 S.Ct. 2060 (2011), how should the jury be instructed on “willful blindness” in a criminal case? Author: John D. Cline, San Francisco, CA.