Amicus Briefs Filed in 2023

The Amicus Curiae Committee’s mission is to provide amicus assistance on the federal and state level in those cases that present issues of importance to criminal defendants, criminal defense lawyers, and/or the criminal justice system as a whole. Membership in NACDL is not a prerequisite either for amicus assistance from the Committee, or for authorship of an NACDL amicus brief.

Counterman v. Colorado

Brief of Amici Curiae American Civil Liberties Union, American Civil Liberties Union of Colorado, Abrams Institute for Freedom of Expression, National Association of Criminal Defense Lawyers, and National Coalition Against Censorship

Argument: Counterman was charged with stalking under Colorado law - section 18-3-602(1)(c). Prior to trial, Counterman moved to dismiss the indictment on the ground that his messages were protected under the First Amendment. The trial court rejected his motion, holding that Counterman’s statements were objectively threatening and therefore fell under the “true threats” exception to the First Amendment. The trial court also granted the State’s motion to exclude evidence related to Counterman’s mental state for lack of relevance. “The appellate court held that Counterman’s messages were true threats unprotected by the First Amendment—even though the jury was not required to find that he intended his messages to communicate a threat. In so holding, the court of appeals followed the Colorado Supreme Court, which, ‘[i]n the absence of additional guidance from the U.S. Supreme Court . . . decline[d] . . . to say that a speaker’s subjective intent to threaten is necessary for a statement to constitute a true threat for First Amendment purposes.’”

Amici argued that “in order for speech to fall within the category of unprotected ‘true threats,’ the state must establish both that the offending statements were objectively threatening in context and that the defendant subjectively intended to threaten the recipient. Because the Colorado statute and the conviction below dispense with any inquiry into subjective intent, and therefore punish speech that is not intended to threaten at all, the conviction cannot stand.” 

The U.S. Supreme Court held: “The State must prove in true-threats cases that the defendant had some subjective understanding of his statements’ threatening nature, but the First Amendment requires no more demanding a showing than recklessness.” The Court held that that recklessness is the required mens rea - the state must show a person ‘consciously disregard[ed] a substantial [and unjustifiable] risk that [his] conduct will cause harm to another,’ Voisine v. United States, 579 U. S. 686, 691. 

The Court vacated and remanded Counterman’s case, holding that the state’s prosecution of Counterman under an objec¬tive standard which did not require showing any awareness on Counter-man’s part of his statements’ threatening character violated the First Amendment.

Lee v. Maryland

Amicus Curiae Brief of the National Association of Criminal Defense Lawyers in Support of Appellee Adnan Syed, by Written Consent

Argument: NACDL, with authors from law firm Paul, Weiss, filed an amicus brief in the Appellate Court of Maryland in Young Lee, as Victim’s Representative v. State of Maryland. Adnan Syed, whose criminal case gained notoriety after being chronicled in the podcast Serial, was recently released from prison after the court vacated his conviction upon the prosecution’s recommendation. Mr. Syed had been serving a life sentence for the 1999 murder of his high school classmate Hae Min Lee. The prosecution cited flaws in the conviction, including unreliable cell phone tower data and possible failure to disclose key exculpatory evidence and two new potential suspects in their motion to vacate Syed’s conviction. Even though they were in attendance, the victim’s family has appealed the vacatur for lack of sufficient notice and opportunity to participate. Our amicus brief argues that, while Maryland law expressly grants a victim the right to receive notice of and attend vacatur proceedings, it does not provide a victim the right to be heard at the proceeding. The Maryland General Assembly made a choice to treat vacatur proceedings differently than other proceedings, such as sentencing, where a victim’s right to be heard is expressly granted. Even if Maryland did provide victims the right to be heard at a vacatur hearing, which it does not, that would not mean that victims have the additional right to participate in such hearings by challenging the evidence, as the victim’s family argues. Giving victims the right to challenge evidence or dispute substantive rulings would effectively allow them to usurp the role of prosecutors and violate due process, we argue.

Lora v. United States

Brief of the National Association of Criminal Defense Lawyers as Amicus Curiae in Support of Petitioner.

Argument: The question presented is whether 18 U.S.C. § 924(c)(l)(D)(ii), which provides that "no term of imprisonment imposed ... under this subsection shall run concurrently with any other term of imprisonment," is triggered when a defendant is convicted and sentenced under 18 U.S.C. § 924(j).  The brief, written by Bruce P. Merenstein and Samuel W. Silver of Schnader Harrison Segal & Lewis in Philadelphia, elaborates on the centuries-long sentencing principle of trial courts' discretion to select concurrent or consecutive sentences.  

“The issue presented here is whether a statute—Section 924(j)—‘mandates’ that the sentence under that provision and the sentences under other statutes of conviction ‘are to run consecutively.’ While Congress plainly has the authority to mandate imposition of consecutive sentences, it must do so against the backdrop of a default regime under which trial courts are entrusted with substantial discretion in sentencing, including over the critical determination whether multiple sentences are to run concurrently or consecutively. Only ‘clear language’ can displace a well-established ‘default rule’ such as this. Babb v. Wilkie, 140 S. Ct. 1168, 1179-81 (2020) (Thomas, J., dissenting)….Section 924(j) contains no clear language mandating that sentences under that provision run consecutively to other sentences imposed at the same time. Indeed, Section 924(j) is notably silent in addressing the temporal status of any sentences imposed under that subsection; it says nothing about whether such sentences should run concurrently or consecutively. That should end the matter. As Section 3584 provides, a sentence under Section 924(j) should run concurrently to other sentences, unless a district court, exercising its discretion, orders it to run consecutively.”

Oregon v. Aranda

Brief of the Oregon Criminal Defense Lawyers Association and the National Association of Criminal Defense Lawyers as Amici Curiae in Support of Defendant-Respondent.

Argument: If OEC 609 is construed to permit all felony convictions without weighing the risk of unfair prejudice, the rule violates federal due process. The indiscriminate admission of even unfairly prejudicial convictions runs counter to common law traditions that require “fundamental fairness” and generally bar the use of propensity evidence.

Barring the use of OEC 403 prior to admitting felony convictions also burdens the exercise of Oregon defendants’ constitutional trial rights. First, it forces defendants to choose between the right to the right to testify and an impartial jury. Relatedly, the per se admission of prior felony convictions against defendants tends to produce a chilling effect on the right to testify because if they take the stand, they will be unfairly prejudiced. The Supreme Court has made clear, “[t]he right to testify on one’s own behalf at a criminal trial . . . is one of the rights that ‘are essential to due process of law in a fair adversary process.’” Rock v. Arkansas, 483 US 44, 51, 107 S Ct 2704, 97 L Ed 2d 37 (1987) (quoting Faretta v. California, 422 US 806, 817, n 15, 95 S Ct 2525, 45 L Ed 2d 562 (1975)). Second, the threat of per se prior conviction impeachment also impermissibly burdens the right to trial because it both distorts the strength of the government’s case and adds to the coercive nature of the plea-bargaining system of criminal adjudication.

United States v. Holmes

Amicus Curiae Brief on Behalf of the National Association of Criminal Defense Lawyers in Support of Appellant and Reversal

Argument: The Federal Rules of Criminal Procedure and of Evidence work together to ensure that a criminal defendant can confront and challenge an expert witness proffered by the prosecution. Rule 16 requires the prosecution to timely disclose the identity of an expert witness, and the basis for that expert’s testimony, sufficiently before trial to permit a criminal defendant to mount a complete defense. And the rules of evidence—in particular, Rules 701 and 702—ensure that an expert’s testimony is based on reliable, verifiable data that can be the subject of rigorous cross-examination. In this prosecution, the defendant, Elizabeth Holmes, was robbed of the protections of these rules. The government disclosed a lay-turned-expert witness—on the critical question of whether Theranos technology worked— on the eve of trial, years after the Rule 16 deadline had passed. Worse, that expert testimony relied upon data that no longer existed, meaning it was neither reliable nor verifiable, and could not be the subject of meaningful crossexamination or responsive testimony. This sleight of hand is, regrettably, common. The government has previously “subvert[ed] the requirements” of the federal rules, and “blur[r]ed the distinction between” expert and lay testimony. United States v. Figueroa-Lopez, 125 F.3d 1241, 1246 (9th Cir. 1997). It also frequently discloses expert witnesses way beyond the deadlines set forth in Rule 16. See United States v. Yagi, 2013 WL 10570994, at *16 (N.D. Cal. Oct. 17, 2013); United States v. Cerna, 2010 WL 2347406, at *1 (N.D. Cal. June 8, 2010). This appeal is an opportunity to call the government to account for these harmful practices.

United States v. James Johnson

Brief of the National Association of Criminal Defense Lawyers and American Civil Liberties Union Foundation as Amici Curiae In Support of Appellant

Argument: NACDL and the ACLU Foundation filed a joint amicus brief addressing how courts should implement during jury selection an informed understanding of implicit (or “unconscious”) racial bias.  In a case in which the defendant and his trial counsel are African American, the district court struck for cause a prospective juror who said race would “impact” her deliberations in that she would scrutinize her thinking for the effects of “inherent bias.”  While recognizing that jurors should examine their own thinking for the effects of unconscious bias, the court thought that examining witness testimony for its effects would be improper.  Believing the juror would do both, the judge granted the government’s for-cause challenge.  That ruling restricted a fundamental jury function:  weighing bias in assessing witness credibility.  Barring consideration of racial bias in particular threatens the accused’s rights to an impartial jury and fair trial.  The ruling also undermines public confidence in the criminal legal system and the rights of diverse jurors to serve as jurors.  
Mateo de la Torre of King & Spalding LLP was the volunteer author, with input from colleagues Jamie Dycus and Craig Carpenito.  Claudia Van Wyk, Staff Attorney at the ACLU’s Death Penalty Project, contributed substantial research and drafting.  Martín Sabelli and Lisa Mathewson were on the brief for NACDL.  Mr. Johnson is represented on appeal by Renee Pietropaolo of the Federal Public Defenders Office (W.D. Pa.).  The case is United States v. James Johnson, No. 22-2845 (3d Cir.).  

United States v. Ravenell

Motion for Leave to File Amicus Curiae Brief on Behalf off the National Association of Criminal Defense  Lawyers in Support of Appellant’s Petition for Rehearing en Banc

Argument: On appeal from the United States District Court for the District of Maryland, NACDL’s Amicus Brief is in Support of a Petition for Rehearing En Banc. Issue: The issue raised is the court’s refusal to instruct on a statute of limitations defense, which seriously impaired Ravenell’s ability to present his defense, resulted in the denial of the constitutional right to have a jury decide if the government has proved beyond a reasonable doubt that the prosecution does not violate the statute of limitations. The panel found the district court need not instruct the jury on a statute of limitations defense timely raised by the defendant. NACDL argues that the panel majority failed to protect the rights of the accused and undermined the fundamental protections of our criminal justice system when it concluded that a district court need not instruct a jury on a statute-of-limitations defense and also improperly substituted its own evaluation of the trial evidence for that of the jury. If the panel majority’s decision, which conflicts with Supreme Court and Fourth Circuit precedent, is not corrected it will adversely affect criminal defendants in the future and undermine the fair administration of justice in criminal cases within the Circuit: the denial of the constitutional right to have a jury decide if the government has proved beyond a reasonable doubt that the prosecution does not violate the statute of limitations.


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