Amicus Briefs Filed in 2016

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.

Lee v. United States

Brief of the National Association of Criminal Defense Lawyers as Amicus Curiae in Support of Petitioner (on Petition for Writ of Certiorari).


Argument: NACDL supports the petition in this case because the Sixth Circuit's position (and that of the Second, Fourth, and Fifth Circuits) reflects a fundamental misunderstanding of the role of appellate courts and would permit them to impermissibly speculate as to what choices criminal defendants might make had they been properly advised by their counsel with respect to deportation risks. Judicial reasoning about whether a defendant would have chosen to take his case to trial improperly usurps the defendant's fundamental right to a jury of his peers. The importance of the question presented in this case is highlighted by three additional arguments. First, the Sixth Circuit's reasoning constitutes improper appellate intrusion into an area in which appellate courts have no business; namely, a defendant's decision whether or not to invoke the right to trial. The exercise of that right cannot be subject to a priori tests for rationality. Even if courts could impose such a test, the nature of our adversarial system makes rational assessment impossible. Second, our collective experience of "can't win" cases amply demonstrates that such cases can indeed be won based upon much more than "whimsy," "caprice," or "nullification." Finally, the Sixth Circuit's reasoning rests on a shop-worn claim that the result is necessary because otherwise defense counsel may act in bad faith. The Court should not countenance any such assumption that members of the bar and officers of the court would act contrary to their ethical duties.