Amicus Briefs Filed in 2019

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.

 

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Banister v. Davis

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


Argument: A Rule 59 motion is "part and parcel" of a habeas petitioner's "one full opportunity" to litigate a first federal habeas petition. The Fifth Circuit's rule leads to inefficient judicial administration of habeas petitions and unfair results for habeas petitioners. Rule 59 motions allow district courts to correct their own errors before judgment becomes final, thus avoiding unnecessary reversals and unfair results. Rule 59 motions also allow district courts to clarify their own orders even where they continue to deny relief, thus avoiding unnecessary remands. Eliminating Rule 59 motions would create additional burdens for the court of appeals. Recharacterizing Rule 59 motions as unauthorized second or successive petitions would deprive many petitioners of the opportunity to appeal in their first federal habeas proceedings.

Baxter v. Bracey and Harris

Brief of Cross-Ideological Groups Dedicated to Ensuring Official Accountability, Restoring the Public’s Trust in Law Enforcement, and Promoting the Rule of Law as Amici Curiae in Support of Petitioner (on petition for a writ of certiorari)


Argument: Qualified immunity regularly denies justice to those deprived of federally guaranteed rights. Official misconduct is a pressing public concern, and Section 1983 liability is often the law’s only mechanism for remedying it. Qualified immunity regularly excuses public officials for unconstitutional misconduct. Qualified immunity imposes prohibitive and unjustified costs on civil-rights litigants. Qualified immunity harms public officials by eroding public trust and undermining the rule of law.

Doe v. Woodard

Brief of Cross-Ideological Groups Dedicated to Ensuring Official Accountability, Restoring the Public’s Trust in Law Enforcement, and Promoting the Rule of Law as Amici Curiae in Support of Petitioner (on petition for a writ of certiorari)


Argument: Qualified immunity regularly denies justice to those deprived of federally guaranteed rights. Official misconduct is a pressing public concern, and Section 1983 liability is often the law’s only mechanism for remedying it. Qualified immunity regularly excuses public officials for unconstitutional misconduct. Qualified immunity imposes prohibitive and unjustified costs on civil-rights litigants. Qualified immunity harms public officials by eroding public trust and undermining the rule of law.

Faulkner and Smith v. Maryland

Brief for National Association of Criminal Defense Lawyers as Amicus Curiae in Support of Appellants.


Argument: The courts below committed legal error in not considering the State’s affirmative obligations to disclose exculpatory evidence. The State’s duty to disclose exculpatory information necessarily informs defense counsel’s diligence obligations. The defense was entitled to rely on the State’s open-file policy. The Circuit Court abused its discretion by not considering some of the most probative evidence regarding defense counsel’s diligence in regards to the Keene Statement.

Federal Defenders of New York v. Federal Bureau of Prisons

Brief for Amicus Curiae National Association of Criminal Defense Lawyers in Support of Plaintiff-Appellant.


Argument: For two weeks, the Federal Bureau of Prisons (“BOP”) and Warden Herman Quay denied inmates at the Metropolitan Detention Center in Brooklyn (“MDC”) access to counsel and confined them to their cells with no light, little to no heat in the dead of winter, and no access to essential medical treatments. The District Court held that only the inmates themselves could bring suit to remedy the situation. This case presents a question of prudence not standing. The Federal Defenders should have the ability to enforce the right to counsel. The effective assistance of counsel is central to the functioning of our adversarial system. Assistance of counsel is impossible without attorney-client access. The Federal Defenders have strong incentives to protect the right to counsel. The Federal Defenders are an ideal candidate for enforcing the right to counsel.

Garner v. Colorado

Brief of the National Association of Criminal Defense Lawyers as amicus Curiae in Support of Petitioner (on petition for writ of certiorari).


Argument: This Court’s cases, which make clear that a defendant’s right to due process is implicated when the government orchestrates an unreliable identification procedure. Most recently, the Court held in Perry v. New Hampshire, 565 U.S. 228 (2012), that no due process check is required where there isn’t any state action. But Perry made clear that a due process check does apply where there is state action and also strong reason to doubt the reliability of an identification. Both of those circumstances are present in cases like this one, where government agents control and manipulate every step of the identification procedure. This Court should grant certiorari to resolve a clear post-Perry split on the question presented and reverse the decision below. Four courts have correctly held that a due process check applies in cases like this one. Eleven courts have wrongly held that a due process check does not apply in cases like this one. Perry was about more than police. Perry is not limited to identifications that result from official misconduct. The identifications here at issue pose unique due process risks. First-time in-court identifications are highly suggestive and error prone. Ordinary trial safeguards cannot remedy the risks inherent to these identifications.

Hoffman v. United States

Brief of National Association of Criminal Defense Lawyers as Amicus Curiae (on petition for a writ of certiorari).


Argument: The jury system is an imperfect protection against wrongful convictions. The “Equipoise Rule” helps courts to fulfill their duty to protect defendants’ right to be convicted by proof beyond a reasonable doubt. A court must enter a judgment of acquittal if no rational factfinder could find guilt beyond a reasonable doubt. In cases where the evidence is in Equipoise, no rational factfinder could find guilt beyond a reasonable doubt. The Equipoise rule meaningfully protects defendants’ constitutional rights.

Holguin-Hernandez v. United States

Brief of the National Association of Criminal Defense Lawyers and the National Association of Federal Defenders as Amici Curiae in Support of Petitioner.


Argument: Congress abandoned the requirement of “excepting” to adverse trial court rulings because it serves no purpose in the modern era other than needlessly frustrating meaningful appellate review. Experience in the Fifth Circuit confirms that its post-sentence objection rule suffers from the same flaws as the discarded “exceptions” requirement. The Fifth Circuit’s rule does not enhance judicial decisionmaking. The Fifth Circuit’s rule thrwarts meaningful appellate review.

In Re Belizaire

Amicus's [NACDL and ACDL-NJ] Memorandum of Law in Opposition to Motion to Enforce Compliance with the Subpoena.


Argument: A subpoena directed to a defendant's lawyer is potentially damaging to the attorney-client relationship and can impinge on the constitutional right to counsel. The State is not entitled to the protected attorney-client communications because the State already has all the information it seeks and has not made a showing that the information cannot be obtained from a less intrusive source. The crime-fraud exception does not permit the intrusive probing questions proffered by the state. 

In re: Petition to Stay Effectiveness of Formal Ethics Opinion 2017-F-163 and Petition to Vacate For

Brief of Amici Curiae In Support of the Board of Professional Responsibility.


Argument: The plain language of the rule, consistent with the board’s interpretation, requires disclosure of all information that negates guilt, not merely information that may qualify as “material” under Brady. Further, the language requires such disclosure occur in an expeditious manner. Public policy is served by having an ethical rule that does not merely track the constitutional minimum. The board has not engaged in improper rule making but has interpreted a properly-adopted rule.

Jessop v. City of Fresno

Brief of Amici Curiae National Association of Criminal Defense Lawyers, American Civil Liberties Union of Northern California, and American Civil Liberties Union of Southern California in Support of the Petition for Rehearing En Banc.


Argument: The panel decision failed to recognize that the Fourth Amendment plainly prohibits police officers from stealing private property for personal gain. The Fourth Amendment was designed in part to prohibit the Colonial Era practice of officers stealing private property. Case law confirms that the Fourth Amendment prohibits officers from stealing private property while executing a warrant. Rehearing is necessary to prevent immunizing serious law enforcement abuses.

Jewel v. National Security Agency

Brief for Amicus Curiae National Association of Criminal Defense Lawyers in Support of Plaintiffs-Appellants.


Argument: The government's mass interception and scanning of Americans' Internet communications is a search and seizure, triggering the Fourth Amendment's warrant requirement. The "special needs" exception to the warrants requirement cannot justify the government's surveillance program. Foreign Intelligence is not the "primary purpose" of the NSA's dragnet surveillance program. The impact of the intrusion from the NSA's Internet surveillance outweighs the government's need. The privacy interests harmed by upstream surveillance outweigh the government's interest in the program. Indiscriminately seizing and searching communications will include attorney-client communications and therefore impact individuals' Sixth Amendment rights.

Kahler v. Kansas

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


Argument: Principled rationales for punishment do not justify criminal responsibility for individuals who lack moral culpability. None of the punishment embraced by American criminal law justifies punishing people who lack moral capacity. The insanity defense has protected from criminal punishment individuals who lack moral culpability. Abolishing the insanity defense, as Kansas has done, allows people who lack moral culpability to be imprisoned and executed.

Kansas v. Glover

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


Argument: Kansas's bright-line rule is incompatible with the flexible reasonable-suspicion standard. Automated license-plate reader technology highlights the constitutional problems with Kansas's rule. Kansas's rule lets computers, not case-by-case judgments, control the constitutional analysis. The proposed cure for "mistaken stops"--that they will be brief--is no substitute for the Fourth Amendment's protections against unreasonable seizures. Adopting Kansas's rule would create an incentive against investigation. The erosion of privacy would disproportionately affect the poor. A suspended or revoked license indicates economic status, not unsafe driving. ALPR technology unduly affects the poor. 

Kelly v. United States

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


Argument: A state government's right to regulate traffic flow does not qualify as "money or property" under this Court's applications of the mail fraud statute. The deception charged in this case -- lying about the motivation for state governmental policy -- is not cognizable as fraud under the mail fraud statute.

Knox v. Pennsylvania

Motion for Leave to File Brief of Amicus Curiae and Brief of the National Association of Criminal Defense Lawyers as Amicus Curiae in Support of Petitioner (on petition for a writ of certiorari)


Argument: The decision below allows the government to criminalize speech that is objectively non-threatening. The decision below contravenes this Court’s case law and First Amendment principles. The existing state of the law paired with the realities of our criminal justice system risks suppressing speech.

League of Women Voters v. Boockvar

Brief for National Association of Criminal Defense Lawyers as Amicus Curiae in Support of Petitioners.


Argument: The dramatic impact that Marsy’s Law would have on Pennsylvania’s criminal justice system is not mere speculation. Other states have adopted nearly identically vague and broad constitutional amendments, which have resulted in substantial harm not only to criminal defendants, but also to the administration of the criminal justice system. This amicus brief summarizes the substantial burdens that Marsy’s Law has imposed in other states where it has gone into effect. The right “to reasonable and timely notice of and to be present at all public proceedings involving the criminal or delinquent conduct” has cost counties and states millions of dollars and congested court dockets. Marsy’s Law states have struggled to deal with the financial impact of the notice provision. The docket congestion caused by the notice provision has caused intolerable delays in proceedings. The right “to reasonable protection from the accused or any person acting on behalf of the accused” has led to absurd results in pretrial release decisions. The right to “full and timely restitution” will take money from the courts. The codification of “respect for the victim’s…privacy” and the right “to reasonable protection from the accused” has made it more difficult for law enforcement to solve crimes and left the public lacking critical information about criminal activity.

Leyva v. United States

Brief of Amici Curiae Due Process institute, Cato Institute, National Association of Criminal Defense Lawyers, Rutherford Institute, District of Columbia Association of Criminal Defense Lawyers, Pennsylvania Association of Criminal Defense Lawyers, Texas Criminal Defense Lawyers Association, and Law Professors in Support Petition for a Writ of Certiorari.


Argument: The standard-of-review question this case presents implicates profound concerns with federal sentencing--concerns with substantial constitutional implications. Federal courts routinely sentence defendants to years in prison based on hearsay statements relayed to the court at sentencing by law enforcement officers. Those statements often come from convicted criminals who want to reduce their sentences by cooperating with the government. The cooperating criminals do not appear in court, so the district judge has no opportunity to assess their demeanor. They do not swear an oath to tell the truth. They do not face cross-examination. And their out-of-court statements need only persuade the judge by a preponderance of the evidence. Petitioner Beltran Leyva faces a life sentence based on precisely such evidence. Defendants have few safeguards against sentencing enhancements that rest on false out-of-court statements from cooperating criminals. One such protection is searching appellate review. De novo review by the court of appeals ensures that the reliability of the cooperator's statement will receive a second level of careful scrutiny. And de novo review comports with the rationale for heightened appellate scrutiny: the stakes--a person's right to due process of law before losing his liberty--are high, and, because the district court never observes the cooperator's demeanor, the appellate court is just as capable of evaluating his credibility.

Lomax v. Ortiz-Marquez

Brief of Amicus Curiae National Association of Criminal Defense Lawyers in Support of Petitioner and Supporting Reversal.


Argument: In deciding when to impose a “strike,” Congress incorporated the well-established merits-based distinction between a with-prejudice dismissal and a without-prejudice dismissal. Treating a dismissal without prejudice as a strike undermines the Judiciary’s inherent equitable power to leave the courthouse doors open to meritorious claims brought by indigent prisoners. Treating a without-prejudice dismissal as a strike penalizes poor prisoners for proceedings pro se and stifles meritorious claims.

Lovelace v. People of the State of Illinois

Motion for Leave to File Brief as Amicus Curiae and Brief of the National Association of Criminal Defense Lawyers as Amicus Curiae in Support of Petitioner (on petition for a writ of certiorari)


Argument: Removing barriers to the effective administration of justice has long been a priority for this court. The high costs imposed on the wrongfully accused are a barrier to the effective administration of justice. When the burden is too great on the innocent, Americans pick up the tab. Jails are not free. Taxpayers will pay more to jail the innocent than the cost of pre-trial release. The impact of pre-trial detention has an economic ripple effect. Collateral consequences of pre-trial detention erode the administration of justice.

Martoma v. United States

Brief of Amicus Curiae National Association of Criminal Defense Lawyers In Support of Petition for a Writ of Certiorari


Argument: Over 200 years ago, this Court declared that there are no federal common law crimes. Although that rule remains in place, the intervening years have witnessed the creation of quasi-common law crimes. These are crimes that rest on statutory terms so broad and indefinite that courts are left to define the elements of the offense with little or no guidance from the statutory text. Quasi-common law crimes shift the task of defining what conduct deserves "the moral condemnation of the community" from the legislature, where it belongs, to the courts. This Court has sought to remedy the lack of fair warning inherent in quasi-common law crimes through a process of interpretation that often resembles common law crime definition. Insider trading liability--and, in particular, the liability of tippers and tippees at issue here—has followed the same pattern. In the tipper/tippee insider trading context, therefore--as in the antitrust and honest services contexts--the Court, rather than Congress, has determined the elements of the crime. And as in those contexts, a person seeking to conform his conduct to the law when trading on a tip of nonpublic information will learn virtually nothing from the statutory text. He must turn instead to Dirks' "simple and clear 'guiding principle' for determining tippee liability" and act accordingly. The Court's definition of these and other quasi-common law crimes--its creation of "simple and clear guiding principle[s]" for determining whether an offense has been committed--ameliorates (but does not eliminate) the fair warning danger such crimes present. But the Court's decisions perform that function only if the lower courts treat their operative language as if Congress had included that language in the statute itself. If lower courts can modify the Court's "guiding principles" materially, as the court of appeals did here, and thus broaden the scope of criminal liability, then the lack of fair warning inherent in quasi-common law crimes will remain. It is therefore essential to individual liberty that the Court rigorously police the lower courts' application of its decisions defining quasi-common law crimes. The need for the Court's intervention is particularly acute here, because the court of appeals endorsed an expansion of the tipper/tippee insider trading crime that the Court declined to adopt in Salman.

Maryland v. Syed

Brief of Amicus Curiae National Association of Criminal Defense Lawyers in Support of Respondent/Cross Petitioner’s Motion for Reconsideration


Argument: The majority opinion is out of step with other jurisdictions in the United States, which uniformly have found trial counsel’s failure to investigate and introduce testimony from a credible, neutral alibi witness to be prejudicial. By creating a split on an issue where the courts are otherwise uniform, the majority opinion risks cascading consequences for habeas claims around the nation.

McDonough v. Smith

Brief of Criminal Defense Organizations, Civil Rights Organizations, and the Cato Institute as Amici Curiae in Support of Petitioner


Argument: An accrual rule that turns on the “awareness of the evidence and its improper use” is confusing and unworkable. The rule fails to provide clear guidance to plaintiffs and is unworkable. The awareness rule is inconsistent with most other accrual rules for claims stemming from prosecutorial misconduct and will encourage piecemeal litigation. Any rule that encourages litigants to file §1983 lawsuits during pending criminal proceedings is divorced from the realities of criminal litigation. Filing a §1983 claim during a criminal prosecution incentivizes the prosecutor to secure a conviction. Because of the breadth of civil discovery, parallel civil and criminal litigation harms defendants. Filing a §1983 suit during a criminal proceeding prejudices an innocent person’s criminal defense and his §1983 claim. An accrues-during-prosecution rule functionally forecloses many §1983 evidence-fabrication claims and would have devastating consequences. Evidence fabrication is a systemic problem. An accrues-during-prosecution rule will functionally bar many meritorious evidence-fabrication claims. In many cases, an evidence-fabrication claim under §1983 is the only effective form of redress.

McKinney v. Arizona

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


Argument: The Court should find Arizona’s independent review as conducted in this case falls under the direct appeal process, and therefore not a final judgement, thus requiring that Petitioner be guaranteed jury resentencing that gives full consideration to any presented mitigation evidence.

Morgan v. Schott

Brief of Amicus Curiae the National Association of Criminal Defense Lawyers in Support of Petitioner (on petition for a writ of certiorari).


Argument: There is a circuit split over whether an inmate may proceed under § 1983 where he expressly waives any challenge to the loss of good-time credits in order solely to advance claims arising from the other sanctions. The Court should resolve the split and decide the issue in a manner contrary to the Seventh Circuit’s substantive holding because (i) the current circuit split has significant, intolerable practical ramifications for prisoners and the lower courts and (ii) the Seventh Circuit’s decision conflicts with this Court’s Heck jurisprudence and with the Court’s precedents obligating respect for statutory text.

Ogle v. Texas

Brief for National Association of Criminal Defense Lawyers as Amicus Curiae in Support of Petitioner (on petition for a writ of certiorari)


Argument: TEX. PENAL CODE ANN. § 42.07(a)(7) violates the First Amendment. Various state statutes confuse the law by proscribing electronic or telecommunication (putative) harassment

Olivas-Motta v. Barr

Brief of Amici Curiae Immigrant Defense Project, Immigrant Legal Resource Center, National Association of Criminal Defense Lawyers in Support of Petitioner’s Petition for Rehearing or Rehearing En Banc


Argument: The majority’s new retroactivity standard will make it virtually impossible for defense counsel to provide constitutionally adequate advice under Padilla. The panel and the board should have applied the Montgomery Ward retroactivity test in the petitioner’s case. Under the Montgomery Ward factors, Matter of Leal cannot be applied retroactively to Mr. Olivas-Motta. 

Padilla v. Immigration and Customs Enforcement

Brief for Amici Curiae National Association of Criminal Defense Lawyers, Pretrial Justice Institute, and Center for Legal and Evidence-Based Practices in Support of Plaintiffs-Appellees and Affirmance.


Argument: Well-established constitutional law requires that individuals detained by the government receive an individualized bond hearing. The procedural safeguards imposed by the district court for bond hearings are constitutionally required and routinely guaranteed by federal and state law in analogous contexts. Hearings on the need for detention must be prompt. The government must bear the burden of proof. An accurate, contemporaneous record with particularized findings must be kept. Vastly greater numbers of individuals have individualized bond hearings in state pretrial systems. Modern pretrial practices demonstrate that categorical detention of individuals seeking asylum is not necessary to ensure they appear at their hearings. Asylum seekers are likely to appear for their court dates. Risk assessment tools are available to guide the government in deciding which asylum seekers should be released pending immigration proceedings.

People v. Giuca

Brief for Amici Curiae [National Association of Criminal Defense Lawyers, Innocence Project, American Civil Liberties Union, New York Civil Liberties Union, New York State Association of Criminal Defense Lawyers, Legal Aid Society, Bronx Defenders, Center for Appellate Litigation, Office of the Appellate Defender, and Chief Defenders Association of New York] in Support of Respondent


Argument: A prosecutor may not withhold knowledge from the defense of circumstantial evidence from which a jury might reasonably infer that a prosecution witness has a motive to lie simply because the prosecutor believes such a determination would be ‘false,’ nor may it excuse its error years later by citing evidence that also was never presented or vetted at the trial. Evidence of motive must be disclosed so that defense counsel can investigate and present that evidence and the jury—as opposed to the prosecutor—may determine its significance. The people should not be permitted to rely upon information they never used at trial to defeat the materiality of defense-favorable evidence they suppressed.

Quarles v. United States

Brief of Amicus Curiae National Association of Criminal Defense Lawyers as Amicus Curiae In Support of Petitioner


Argument: Congress’s definition of burglary as surreptitiously remaining embodies a contemporaneous intent requirement. Eliminating burglary’s contemporaneous intent requirement would violate the principles of due process and separation of powers underlying the rule of lenity.

Ramos v. Louisiana

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


Argument: Non-unanimous juries are fundamentally different and less deliberative than the Sixth Amendment requires. Non-unanimous juries also fundamentally skew the decision of whether to exercise the jury trial right. The pernicious racial origins of the non-unanimity rule further undermine the Sixth Amendment jury trial right.

Rehaif v. United States

Brief of National Association of Criminal Defense Lawyers as Amicus Curiae In Support of Petitioner


Argument: Mens Rea is a foundational safeguard against punishment for unknowingly unlawful conduct. A knowing violation of 18 U.S.C. 922(g) requires knowledge of the status element making the possession of firearms or ammunition illegal. That the crucial element is the status of the accused himself does not permit dispensing with Mens Rea.

Sample v. United States

Motion for Leave to file amicus brief filed by the National Association of Criminal Defense Lawyers as Amicus Curiae in Support of Petitioner (on petition for a writ of certiorari)


Argument: This case presents an important issue impacting defendants of all incomes convicted of a variety of crimes. The Tenth Circuit held that a sentencing court could not consider the degree to which a defendant’s “earning capacity” would allow him to pay restitution to the victims of his financial fraud when fashioning a sentence. This holding warrants review because it deepens a conflict of authority over whether district courts may sentence a defendant to probation or to a reduced prison term to enable that defendant to earn income to pay restitution and because the Tenth Circuit was wrong on the merits. This case presents an important questions regarding the broad discretion of sentencing judges. While Congress intended restitution be satisfied in every case to the fullest extent possible, the Tenth Circuit’s decision puts this goal at risk by refusing to allow sentencing courts to even consider a defendant’s capacity to pay restitution when imposing a sentence. Because of restitution’s importance within the federal criminal scheme, this Court should grant review to determine whether the capacity to make restitution payments is an appropriate sentencing consideration. This Court’s review also is necessary because the Tenth Circuit’s decision is in significant tension with the historical tradition of broad discretion in the information a court may consider when imposing a sentence.

Sanchez v. United States

Brief of Amicus Curiae National Association of Criminal Defense Lawyers in Support of Petitioners (on petition for a writ of certiorari).


Argument: The legislative history of the Sherman Act strongly supports the petition in this case. That history shows that the framers of the Sherman Act intended for juries to decide whether any particular contract or combination was in restraint of trade. Furthermore, the need for this Court to answer the question presented is particularly pressing because the government is bringing increasing numbers of criminal antitrust prosecutions, and persistent calls for still more aggressive enforcement indicate that those numbers will rise even further.

Schexnayder v. Vannoy

Brief of the National Association of Criminal Defense Lawyers as Amicus Curiae in Support of Petitioner (on petition for a writ of certiorari)


Argument: AEDPA deference should not apply to decisions of state-court jurists who labor under a probability of actual bias. Due process requires a judge free from the “Probability of Actual Bias.” Petitioner’s state post-conviction appeals were tainted by the probability of actual bias. The federal district court accorded AEDPA deference despite the probability of actual bias. Lower courts are split over whether federal habeas petitioners may challenge state post-conviction procedures that violate due process. The question presented is important because state courts are the “primary”— and, in almost every case, the only – “forums” for vindicating prisoners’ federal constitutional rights. 

Serrano v. Customs and Border Patrol

Brief of Amici Curiae National Association of Criminal Defense Lawyers, Cato Institute, and Due Process Institute in Support of Plaintiffs-Appellants.


Argument: Unfair and abusive uses of asset forfeiture by government agencies underscore the importance of due process protections in this case. Due process requires a prompt post-deprivation hearing when the government seeks forfeiture of a vehicle. Relevant Supreme Court and federal court precedent generally require a pre-deprivation hearing, but still require a post-seizure hearing for seizure of vehicles. The factors in Mathews v. Eldridge weigh strongly in favor of a prompt post-seizure hearing.

Shular v. United States

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


Argument: Taylor's categorical approach applies to all ACCA predicates. A prior conviction that lacks a mens rea element cannot constitute a "serious drug offense." ACCA's legislative history affirms that state drug convictions lacking a mens rea requirement do not qualify as "serious drug offenses." ACCA will continue to have a geographically disparate impact unless the categorical approach is applied. 

Soares v. State of New York

Memorandum of Law of the New York State Association of Criminal Defense Lawyers, the National Association of Criminal Defense Lawyers, DKT Liberty Project, The Legal Aid Society, Brooklyn Defender Services, The Bronx Defenders, The Chief Defenders Association of New York, The New York State Defenders Association, Robert F. Kennedy Human Rights, and Discovery for Justice as Amici Curiae in Support of Defendant Carl E. Heastie's Cross-Motion for Summary Judgment. 


Argument: The legislature, empowered to regulate state prosecutors, may exercise its policy judgment to hold prosecutors accountable for misconduct or otherwise abrogate traditional immunities. Because existing mechanism fail to hold prosecutors accountable for misconduct, it is unsurprising that the legislature concluded the commission is necessary. That prosecutors rarely face accountability for misconduct is a widespread, long-standing, and well-documented problem. The record in New York is no exception, and prosecutors currently escape any accountability for misconduct. The commission will provide accountability that is currently absent.

St. Hubert v. United States

Brief for Amicus Curiae National Association of Criminal Defense Lawyers in Support of Petitioner (on petition for writ of certiorari).


Argument: It is emphatically the province and duty of the judicial branch to say what the law is, not what the law was. But in the Eleventh Circuit, petitioner and scores of other defendants like him have their cases decided on the basis of law otherwise recognized as repudiated by intervening precedent from this Court. Alone among the circuit courts, the Eleventh Circuit requires direct instruction from the Supreme Court to revisit its prior precedent; without it, rationale widely considered clearly erroneous in light of subsequent Supreme Court case law is still applied to defeat defendants’ appeals. Because the Eleventh Circuit’s internal rules require Supreme Court precedent to be “directly on point” to allow reconsideration of its past case law, it takes a narrower view of Supreme Court rationale than does this Court. Where, as in this case, a court acknowledges that the Supreme Court’s intervening rationale is “at odds with” its binding precedent and yet forecloses argument on the issue, a defendant’s due process right to a meaningful appeal is violated. Review is warranted because the Eleventh Circuit's practice is impermissible and inconsistent with all other circuits. The problem is important, recurring, and squarely presented. For this reason, and those in the petition, the Court should grant certiorari.

State v. Jackson

Brief of Amici Curiae The American Civil Liberties Union, The National Association of Criminal Defense Lawyers, and The Association of Criminal Defense Lawyers of New Jersey


Argument: The state violates the Fourth Amendment and article 1, paragraph 7 when it obtains access to an incarcerated person’s recorded telephone conversations without a warrant. Jackson had a reasonable expectation of privacy in the calls he made to his mother from jail. Jackson did not forfeit all privacy rights in his telephone conversations by exposing them to jail staff for security monitoring purposes. Jackson did not consent to the State accessing his calls for its use in his prosecution. Requiring prosecutors to secure warrants in order to access jail calls is the only adequate way to protect the constitutional and policy interests the calls implicate.

State v. Kraft

Brief of Amicus Curiae for the Florida Association of Criminal Defense Lawyers and the National Association of Criminal Defense Lawyers in Support of the Appellee.


Argument: The circuit court correctly concluded that the video recordings should have been suppressed because the State failed to follow minimization requirements. The Fourth Amendment prohibits the government from unreasonably intruding in citizens’ privacy. Here, the government recorded citizens over the course of several days in a day spa, where they had a reasonable expectation of privacy. The circuit court correctly found that the evidence should be suppressed here. Amici write to emphasize the unprecedented scope of the surveillance, as well as the importance of suppression here to protect the rights of both defendants and uncharged third parties. Traditionally, the remedy for an unconstitutional search would be suppression in a criminal trial. However, because some of the conduct surreptitiously recorded was perfectly legal, not everybody who was recorded has been charged with a crime. Furthermore, those third parties’ only recourse would be the possibility of a civil suit, which is costly. Indeed, suppression here is essentially the only way to deter the State from engaging in mass surveillance, knowing that many citizens would have little to no recourse. Any other result would encourage an “ends justify the means” approach that this Court has cautioned against.

Syed v. Maryland

Brief for the National Association of Criminal Defense Lawyers in Support of Petitioner (on petition for a writ of certiorari).


Argument: The Maryland Court of Appeals’ decision is the first and only to hold that trial counsel’s failure to investigate an unbiased and credible alibi witness is not prejudicial. Such an unforeseen decision will impact criminal defendants and, in particular, habeas petitioners, far beyond Maryland’s borders. Both state and federal courts across the country have found prejudice from trial counsel’s failure to call a credible, non-cumulative, and neutral, alibi witness. Those courts have found prejudice even when the government relies on evidence that the alibi witness may not rebut. The decision below calls into question this “clearly established” legal precedent, impairing the ability to remedy nationwide these unique and meritorious ineffective assistance of counsel claims.

Taylor v. County of Pima

Brief of National Association of Criminal Defense Lawyers, The Innocence Project, California Attorneys for Criminal Justice, The National Police Accountability Project, Center of the Administration of Criminal Law and NYU School of Law, Human Rights Defense Center, and New Mexico Criminal Defense Lawyers Association as Amici Curiae in Support of Plaintiff-Appellee


Argument: Rehearing is warranted to preclude governments from immunizing themselves from liability by conditioning release from wrongful incarceration on a no-contest plea. The inherently coercive no-contest plea required as a condition of release from wrongful imprisonment should not be allowed to confer immunity. Heck does not apply to lawsuits by former prisoners who have completed their sentences and cannot seek a writ of habeas corpus. The panel’s majority causation holding should be reheard to prevent significant and deleterious practical effects. Restricting Heck to its proper scope will not unduly burden government, but would serve the interests of justice.

United States v. Blaszczak

Brief for Amicus Curiae National Association of Criminal Defense Lawyers (“NACDL”) in Support of Defendants-Appellants and Reversal


Argument: Confidential government information is not “property” for purposes of wire fraud and Title 18 securities fraud. Wire fraud and Title 18 securities fraud protect a victim’s property, not regulatory, rights. CMS does not have a property interest in information regarding a regulatory decision. Confidential government information is not a “thing of value” or “property” for purposes of Section 641. Congress has developed a measured, deliberate, and tailored regime for controlling government information. Expanding Section 641 to criminalize virtually any unauthorized disclosure of confidential information would vitiate Congress’s measured, deliberate, and tailored regime for controlling government information. The prosecution’s interpretation of “property” and “thing of value” criminalize core First Amendment activity.

United States v. Davis

Brief of Amicus Curiae National Association of Criminal Defense Lawyers in Support of Respondents


Argument: The government’s proposed use of constitutional avoidance would be unprecedented. This Court has never used constitutional avoidance to broaden a criminal statute. The government’s proposal would broaden the application of the Section 924(c) Residual Clause. This Court never has used constitutional avoidance to interpret identical language in related statutes to mean different things, as the government has proposed here. The government’s proposed use of constitutional avoidance would reduce the canon to an arbitrary tool with dangerous rule-of-law implications. The government’s proposed use of constitutional avoidance is irreconcilable with the due process right to fair notice. The government’s proposed use of constitutional avoidance fundamentally is at odds with the rule of lenity and the principles of fairness underlying the rule. The rule of lenity requires that ambiguous criminal statutes be construed in the defendant’s favor. Application of the rule of lenity is necessary to uphold the separation of powers and protect principles of fairness.

United States v. Gilbert and Roberson

Brief of the National Association of Criminal Defense Lawyers as Amicus Curiae in Support of Defendant-Appellant David Lynn Roberson, Supporting Reversal


Argument: Joint trials of attorneys and clients raise special consideration that tip the balance of interests in favor of severance. Courts evaluating severance must balance the prejudice of a joint trial against judicial efficiency. Joint trials of attorneys and their clients inherently present heightened risks of prejudice. The advice-of-counsel defense is critical to promoting well-counseled decisions in complex fields. The balance of interests favors severance in this case.

United States v. Gozes-Wagner

Brief of National Association of Criminal Defense Lawyers, Cato Institute, American Civil Liberties Union Foundation, American Civil Liberties Union Foundation of Texas, Due Process Institute, and Texas Public Policy Foundation as Amici Curiae in Support of Defendant-Appellant and Reversal. 


Argument: The trial penalty is forcing virtually all criminal defendants to forgo their trial rights. The trial penalty erodes key foundations of the criminal justice system. The trial penalty fundamentally undermines the Sixth Amendment right to a jury trial. The trial penalty compromises the integrity of the criminal justice system. Courts should carefully scrutinize sentencing recommendations that appear to penalize defendants for exercising their right to a jury trial. 

United States v. Haymond

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


Argument: 18 U.S.C. 3583(k) impermissibly increases a defendant’s sentence based on judge-found facts about a new and different criminal offense. The Fifth and Sixth Amendments do not permit a defendant’s sentence to be increased beyond what the jury authorized based on judge-found facts. The mandatory sentencing enhancement in Section 3583(k) is not part of the penalty for the initial offense and therefore violates due process.

United States v. Muhtorov

Brief for Amicus Curiae National Association of Criminal Defense Lawyers in Support of Appellant and Urging Reversal. 


Argument: Without disclosure of the underlying FISA materials, it is impossible to argue under Franks v. Delaware, 438 U.S. 154(1978), that the application contains material misstatements or omissions, and courts have no means of conducting the investigation necessary to make that determination themselves. Without disclosure, defendants cannot argue concretely that the government did not properly minimize the fruits of the surveillance, or that the government did not satisfy the requirement that it exhaust other, less intrusive investigative techniques before turning to FISA. Nor can defendants counter government arguments (typically presented ex parte under § 4 of the Classified Information Procedures Act (CIPA), 18 U.S.C. App. 3 § 4) that the fruits of particular surveillance techniques are too attenuated from the trial evidence to require disclosure. And without notice of particular surveillance techniques that the government used, a defendant cannot argue that, under the circumstances of the case, those techniques violate the Fourth Amendment or another constitutional or statutory protection. As appellant argues, Congress never intended FISA litigation to occur entirely ex parte. Courts have misinterpreted 50 U.S.C. § 1806(f), the statute's disclosure provision. And as we discuss below, the Fifth Amendment Due Process Clause for bids such a secret, one-sided process, under which defendants are routinely denied the information necessary to challenge the lawfulness of government surveillance. No other aspect of criminal law functions entirely in secret; search warrants and Title III wiretap orders are issued ex parte, but after indictment a defendant gets access to the warrant or order and supporting application and a full and fair opportunity to challenge both. It is past time for FISA litigation to meet the standard of fairness that is the hallmark of American law.

United States v. Newland

Brief of Amicus Curiae National Association of Criminal Defense Lawyers in Support of Defendant David Newland.


Argument: Exceptions to statutes of limitations should be narrowly construed. The Wartime Suspension of Limitations Act (WSLA) should only apply to war frauds. The WSLA should only apply to pecuniary frauds. Fairness further requires narrow construction of WSLA. Strict construction of the 2008 act is needed because modern authorizations of the use of military force would otherwise allow an unintended indefinite suspension of statutes of limitations. Application of the WSLA would render the defense of withdrawal from a conspiracy a nullity. 

United States v. Shelton

Brief of National Association of Criminal Defense Lawyers as Amicus Curiae in Support of Appellant Randell G. Shelton, Jr., Reversal, and Remand.


Argument: This case involves an important question of criminal law: Under the Due Process Clause of the United States Constitution, what is the appropriate remedy when a government agent acts in shocking bad faith, intentionally “wiping” his government-issued, undercover laptop computer instead of delivering it for a forensic evaluation as instructed? The Court below found that the agent acted in bad faith and violated Appellant’s due process rights, but nevertheless fashioned a remedy short of dismissal. The remedy given by the Court wasn’t nearly sufficient to (a) satisfy the defendant’s right to seek and discover potentially exculpatory evidence; (b) punish the government for wrongful conduct in this case, or (c) deter wrongful conduct in future cases by similarly situated government agents or entities. This issue strikes at the heart of the due process guarantee and the fairness of the justice system. Dismissal is the only remedy that will appropriately redress the government’s acts of bad faith and violations of Appellant’s due process rights.

United States v. Tsarnaev

Brief of Amicus Curiae the National Association of Criminal Defense Lawyers in Support of Appellant Dzhokhar Tsarnaev.


Argument: No facts are too heinous, no conduct too appalling, and no defendant too unsympathetic to rule out a life verdict from a properly empaneled American trial jury presented with compelling mitigation. Even a defendant convicted of the worst crimes is constitutionally entitled to present broad mitigation during the penalty phase of a capital trial and a jury cannot impose the death penalty unless it unanimously finds that the mitigation is outweighed by aggravating factors. The examples discussed in this brief illustrate that properly selected and instructed juries will reach life verdicts in many of the most aggravated capital prosecutions. Juries have rejected the death penalty for acts of terrorism. Courts routinely vacate capital sentences when errors undermine confidence in the decision to impose death.

United States v. Valdez

Brief of Amicus Curiae National Association of Criminal Defense Lawyers in Support of Appellant’s Petition for Rehearing and Rehearing En Banc


Argument: The panel’s decision is inconsistent with background principles of forfeiture, congressional intent, Supreme Court precedent, and constitutional limitations. Neither Section 924(D) nor Section 853(P) permits entry of a money judgment as “substitute property” subject to forfeiture 

Walker v. United States

Brief of FAMM and the National Association of Criminal Defense Lawyers as Amici Curiae in Support of Petitioner (on petition for a writ of certiorari)


Argument: The question that has divided the circuits is of critical importance to thousands of federal prisoners. The decision below gravely misreads the federal post-conviction relief statute. The Eighth Circuit’s rule contradicts the plain text of § 2244. The Eighth Circuit’s rule leads to arbitrary results. The severity of the consequences to petitioner and many others similarly situated – and the disutility of their sentences to society – underline the urgency of granting review.

White v. Louisiana

Motion for Leave to File Brief of Amicus Curiae and Brief of the National Association of Criminal Defense Lawyers as Amicus Curiae in Support of Petitioner (on petition for a writ of certiorari).


Argument: The decision below contradicts this court’s holdings that the Sixth Amendment guarantees an “adequate opportunity to cross-examine” the declarant with respect to out-of-court testimony.

Wisconsin v. Fitzgerald

Brief of Amici Curiae the National Association of Criminal Defense Lawyers, Bazelon Center for Mental Health Law, National Disability Rights network, and Disability Rights Wisconsin


Argument: Forced antipsychotic medication implicates the defendant’s constitutional rights. Section 971.14’s involuntary medication provisions are incompatible with Sell. This Court should instruct circuit courts to conduct thorough Sell hearings.

Witherow v. Skolnik

Brief of Amici Curiae Prison Law Office, American Civil Liberties Union, ACLU of Nevada, Ethics Bureau at Yale, National Association of Criminal Defense Lawyers, and National Juvenile Defender Center in Support of Plaintiff-Appellant and in Support of Reversal.


Argument: Nevada Department of Correction (NDOC) staff’s acts of listening to confidential legal calls burden attorneys’ First Amendment Rights. NDOC staff’s practice of listening to legal calls impairs attorneys’ duty to communicate and keep clients reasonably informed. NDOC staff’s actions prevent attorneys from complying with their ethical duty of confidentiality. NDOC staff’s actions prevent attorneys from complying with their ethical duties of competent and diligent representation.