Amicus Briefs ~ 2018

Alvarez v. City of Brownsville, 5th Cir., Case No. 16-40772, panel decision at 860 F.3d 799 (5th Cir. June 26, 2017, brief filed 1/10/18. Brady---Due Process---Exculpatory Information---Plea Bargaining---§1983---Trial Penalty---Ruiz. Brief for National Association of Criminal Defense Lawyers as Amicus Curiae in Support of George Alvarez. Argument: Today’s justice system is a system of pleas, so disclosure of exculpatory information in plea bargaining is imperative. Plea bargaining dominates modern criminal justice. Empirical data shows that many innocent defendants plead guilty, often to avoid the risks trial poses. Due process requires that the government disclose exculpatory information before a defendant pleads guilty. The principles underlying Brady apply in all criminal cases, not just the minority of cases that end in a trial. Ruiz does not foreclose defendants’ constitutional right to exculpatory information during plea bargaining. Numerous other courts recognize the right to exculpatory information before pleading guilty. The right to exculpatory information in plea bargaining is a logical corollary of the right to effective assistance of counsel. The government’s counterarguments are unpersuasive. The Court should correct its course on this critical constitutional right. Authors: Jason N. Jordan, Benjamin L. Mesches, Christopher R. Knight, and Ryan Gardner, Haynes and Boone, LLP, Dallas, TX; David Gerger, Quinn Emanuel Urquhart & Sullivan, LLP, Houston, TX.

Hughes v. United States, U.S. Sup. Ct., No. 17-155, decision below 849 F.3d 1008 (11th Cir. Feb. 27, 2017), brief filed 1/29/18. Sentencing---Reduction---Retroactive Resentencing Guidelines---Marks---Freeman---Rule 11(c)(1)(C)---Plea Agreement. Brief Amici Curiae of the National Association of Criminal Defense Lawyers and the National Association of Federal Defenders in Support of Petitioner. Argument: The Freeman concurrence leads to unpredictable results because parties rely on the Sentencing Guidelines but do not draft plea agreements with retroactive resentencing in mind. The Sentencing Guidelines are key to all pleas because prosecutors must make them central to their decisions. Defendants use their limited plea leverage to address pressing, current issues. Defendants almost universally plead guilty. Defendants who plead prioritize current issues over uncertain future eventualities like retroactive Sentencing Guidelines. Rule 11(c)(1)(C) plea agreements differ by jurisdiction. Variations in plea agreements lead to different resentencing outcomes for similarly-situated defendants. The Freeman concurrence leads to inequitable results because eligibility for resentencing does not necessarily reflect the parties' actual intent. The Freeman concurrence leads to inconsistent results for defendants with similar plea agreements because there is confusion about the level of specificity required. Freeman should be modified to provide a clear, administrable rule. Justices have recognized the importance of clear, administrable rules rather than creating 4-1-4 split decisions. The proper rule is for all Rule 11(c)(1)(C) defendants to be resentenced when a guidelines range implicated by their plea is amended retroactively. Congress or the United States Sentencing Commission can always revise this rule if desired. Authors: Nathaniel P. Garrett, Jones Day, San Francisco, CA; Kenton J. Skarin, Jones Day, Chicago, IL; David M. Porter, NACDL, Washington, DC.

Koons v. United States, U.S. Sup. Ct., No. 17-5716, decision below 850 F.3d 973 (8th Cir. Mar. 10, 2017), brief filed 1/29/18. Sentencing---Section 3553(e) Cooperators---Section 3582(c)(2) Sentence Reductions---Mandatory Minimum Sentences---USSG Section 1B1.10(c)---Offense-specific guideline range. Brief of the National Association of Criminal Defense Lawyers as Amicus Curiae in Support of Petitioners. Argument: Section 3553(e) cooperators are eligible for § 3582(c)(2) sentence reductions because such cooperators are not subject to statutorily required mandatory minimum sentences. Alternatively, § 3553(e) cooperators are eligible for § 3582(c)(2) sentence reductions under USSG § 1B1.10(c). Alternatively, § 3553(e) cooperators are eligible for § 3582(c)(2) sentence reductions because district courts necessarily consult the offense-specific guideline range at sentencing. Authors: Daniel T. Hansmeier, Kansas City, KS; Jeffrey T. Green, NACDL, Washington, DC.

United States v. Paulus, 6th Cir., No. 17-5410, decision below 2017 WL 908409 (E.D. Ky. Mar. 7, 2017), brief filed 1/10/18. Overcriminalization---Subjective Medical Professional Judgment---Congressional Intent. Brief of the National Association of Criminal Defense Lawyers as Amicus Curiae In Support of Appellee. Argument: Contrary expert opinion, taken alone, is insufficient to establish false statement or fraudulent intent beyond a reasonable doubt with respect to medical decisions that are inherently a matter of subjective professional judgment. Overturning the judgment below could lead to criminalizing legitimate exercises of medical judgment by physicians. Congress did not intent to criminalize legitimate, good faith medical practice. Disagreements among medical professionals in areas of medicine involving a significant degree of medical judgment can form the basis for civil liability or disciplinary sanctions, rather than criminal liability. Authors: Nicolas Bourtin, Charles Moulins, and Carson Zhou, Sullivan & Cromwell LLP, New York, NY; David O. Markus, NACDL, Miami, FL.

United States v. Wright, 3rd Cir., Case No. 17-1972, on appeal from the United States District Court for the Western District of Pennsylvania, Crim. No. 14-292 (Bissoon, J.), brief filed 2/12/18. Rule 31(b)(3)---Mistrial---Retrial---Discretion---Double Jeopardy Clause. Brief of Proposed Amicus Curiae National Association of Criminal Defense Lawyers. Argument: Rule 31(b)(3) permits district courts to exercise discretion in declaring a mistrial or allowing a retrial. The district court carefully weighed the critically important interests underlying the Double Jeopardy Clause. Authors: Lawrence S. Lustberg and J. David Pollock, Gibbons P.C., Newark, NJ.

Zullo v. Vermont, Supreme Court of Vermont, Docket No. 2017-284, appeal from Rutland Superior Court Docket No. 555-9-14 Rdcv, brief filed 2/12/18. VT Const. Art. 11---Search and Seizure---Racial Profiling---Race-Based Inequities/Disparity---Perceptions of Criminality---Implicit Bias---Police Discretion. Brief of the National Association of Criminal Defense Lawyers et al. as Amici Curiae in Support of Plaintiff-Appellant. Argument: Expanding police discretion would exacerbate the racial inequities entrenched in Vermont's criminal justice system in general, and its traffic enforcement practices in particular. Implicit racial bias impacts police office behavior and perceptions of what constitutes criminal behavior. Authors: Dahlia Mignouna and Chad I. Golder, Munger, Tolles & Olson LLP, Washington, DC; Jeffrey T. Dickson, Dickson Law Office, PLLC, Burlington, VT; Lindsay A. Lewis, NACDL, New York, NY.


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