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Abdur'Rahman v. Tennessee
Brief of Amicus Curiae National Association of Criminal Defense Lawyers in Support of Appellee.
Argument: The Davidson County Criminal Court had jurisdiction to evaluate Mr. Abdur’Rahman’s motion to re-open his post-conviction petition, which gave it the inherent power to preside over a settlement of his post-conviction case. Due Process, principles of contract law, and economic efficiency require Mr. Abdur’Rahman’s settlement agreement to be specifically enforced. Under agency law principles, the District Attorney General had the actual and apparent authority to settle Mr. Abdur’Rahman’s post-conviction case. District Attorneys General, duly elected by the public in their district, are in a superior position to broker settlements in post-conviction capital cases. Troubling equal protection issues are raised in a system where the State Attorney General can appeal some post-conviction settlements but allow others to stand.
Attorney General Maura Healey v. Facebook, Inc.
Brief of the National Association of Criminal Defense Lawyers as Amicus Curiae in Support of Respondent-Appellant Facebook.
Argument: This Court should grant direct appellate review in this case because the public interest in preserving work product protection and attorney-client privilege is of such importance that justice requires a final determination by this Court. In compelling Facebook to produce information generated in the course of an attorney-led investigation, the Superior Court failed to properly apply the work product and attorney-client privilege protections that attached to those materials. The work product doctrine protects from disclosure information generated in the course of an attorney-led investigation that is conducted “because of” anticipated litigation, and an attorney’s sorting of information during a privileged investigation cannot be discoverable by his adversary. And the attorney-client privilege protects confidential communications between lawyers and their clients even if the client publicly discloses the existence of an attorney-led investigation. In rejecting these principles, the Superior Court created dangerous uncertainty in the attorney-client relationship.
Booth v. Galveston
Brief for Harris County Public Defender, Harris County Judge Lina Hidalgo*, Harris County Commissioner Rodney Ellis, Precinct 1* and National Association of Criminal Defense Lawyers as Amicus Curiae in Support of Plaintiffs-Appellees (*as elected officials and not on behalf of Harris County government).
Argument: A determination of bail, pursuant to TEX. CODE CRIM. P. ART. 15.17, at a defendant’s initial appearance, is a critical stage of trial requiring the assistance of counsel. The district court’s findings and conclusions aptly support this proposition. An unrepresented defendant before a magistrate at first appearance has the untenable choice of speaking on her own behalf for release – and possibly saying something that may later be used against her – or lose that opportunity to advocate for freedom by remaining silent. Once that first bail determination has been made, the chance of changing it, particularly to lower bail, significantly diminishes. That loss of liberty has a direct detrimental effect on a defendant’s outcome at trial. In support, Amicus Curiae will offer its current relevant experience and data, some of which were previously accepted as fact by another United States District Judge and a panel of this Honorable Court of Appeals.
Edwards v. Vannoy
Brief of the National Association of Criminal Defense Lawyers as Amicus Curiae in Support of Petitioner.
Argument: Like Gideon v. Wainwright (the only case the Supreme Court has recognized as falling within Teague v. Lane’s watershed rule exception), Ramos v. Louisiana is a watershed rule and therefore, under Teague v. Lane, applies retroactivity to cases on collateral federal review. Ramos, like Gideon, overturned a badly flawed, errant precedent to restore a bedrock Sixth Amendment right. Ramos, like Gideon also increases the accuracy of convictions, when accuracy is properly understood to refer to the fairness of the process and the likelihood that the defendant received procedural protections guaranteed by the Constitution, rather than the likelihood that actual guilt or innocence is determined.
Gonzalez v. Immigration and Customs Enforcement
Brief of National Immigration Project of the National Lawyers Guild, Immigrant Legal Resource Center, University of Nevada, Las Vegas Immigration Clinic, National Association of Criminal Defense Lawyers, Washington Defender Association, Brooklyn Defender Services, Bronx Defenders, and Immigrant Defense Project as Amici Curiae in Support of Appellees and Cross-Appellants Gerardo Gonzalez, et al.
Argument: ICE’s use of immigration detainers violates the Fourth Amendment’s prohibition against arbitrary detention and its requirement that a person in government custody receive a prompt, neutral determination of probable cause for their arrest. ICE issues immigration detainers to local law enforcement without any neutral or even individualized probable cause determination, but based merely on the automated review of computerized databases that are incomplete and inaccurate. The subjects of these detainers are frequently held for at least 48 hours after they are otherwise eligible for release, even though most are not even taken into ICE custody. Those taken into ICE custody are frequently denied bond and remain in detention for additional weeks, months, or even years before an immigration judge rules on their removal proceedings, without any neutral review of probable cause supporting their arrest. ICE detainers also result in a wide range of negative collateral consequences even separate and apart from lengthy detention. Because ICE detainers have repercussions indistinguishable from criminal proceedings in which prompt, neutral review of probable cause is required, they must be subject to the same Fourth Amendment protections under Gerstein.
Jones v. Mississippi
Brief of the National Association of Criminal Defense Lawyers, Mississippi Office of the State Public Defender, and Mississippi Public Defenders Association In Support of Petitioner.
Argument: The Supreme Court has held that life without parole is appropriate only for a “permanently incorrigible” juvenile offender. States like Mississippi that do not require a finding of permanent incorrigibility are not reliably implementing that command because offenders receive life-without-parole sentences even if they are capable of change. Mississippi’s approach also produces arbitrary sentencing outcomes, because a juvenile’s sentence depends on whether his sentencer independently comprehends Miller, not on whether he is actually permanently incorrigible. States that require a finding of permanent incorrigibility ensure that juvenile offenders only receive life-without-parole sentences when the sentence is proportionate and lawful. Sentencers can still impose life-without-parole sentences when an offender is actually permanently incorrigible.
Lugo v. United States
Brief of the National Association of Criminal Defense Lawyers as Amici Curiae in Support of Petitioner (on Petition for a Writ of Certiorari).
Argument: Law enforcement officers testifying on matters based on their professional experience or training should be treated as expert witnesses under Federal Rule of Evidence 702, rather than Rule 701. Law enforcement officers have scientific, technical, or specialized knowledge within the scope of Rule 702. There is an intractable Circuit split on this issue and the Supreme Court should grant certiorari. The question presented arises in a wide variety of cases. Permitting law enforcement officers to furnish lay opinion testimony leads to unfair applications, including law enforcement officers being allowed to offer opinions no other lay witness would be permitted to give.
McCoy v. United States
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 Fourth Circuit’s holding in this matter warrants review for the additional and important reason that that it allows officers to conduct searches for weapons despite the fact that the officers’ reasonable suspicion went only to drug use. Blanket rules of reasonable suspicion based upon drug use alone violate this Court’s precedent and the Fourth Amendment, which require greater respect for individual liberty from search and seizure. Moreover, as this Court articulated in Richards v. Wisconsin, stereotypical inferences about drug use and firearm risk create both “over-generalization” and bootstrapping concerns that would allow the reasonable suspicion requirement to expand so broadly that it would provide no meaningful check on potential Fourth Amendment violations. Finally, the Fourth Circuit’s holding denies Petitioner independent appellate review (i.e., without deference to the trial court determination) of ultimate determinations of reasonable suspicion, as this Court requires pursuant to Ornelas v. United States.
McGirt v. Oklahoma
Brief of National Association of Criminal Defense Lawyers as Amicus Curiae in support of petitioner.
Argument: Because Oklahoma law allows challenges to the subject-matter jurisdiction of a criminal court to be raised at any time, the procedural bar applied by the state court of last resort was not an adequate ground in state law to avoid jurisdiction under 28 U.S.C. § 1257. The Court should reverse the decision of the state courts and remand with instructions to dismiss the charges against petitioner, because Congress has the sole prerogative to set the limits of state criminal jurisdiction in Indian country, and Congress has never given Oklahoma the authority to prosecute crimes committed by Indians in Indian country in that state.
Missouri v. Johnson
Brief of Missouri Association of Criminal Defense Lawyers (MACDL) and National Association of Criminal Defense Lawyer (NACDL) as Amici Curiae in Support of Appellant and Intervenor.
Argument: Conviction of innocent persons cannot be tolerated. A prosecutor should be able to exercise her statutory and ethical duty to assist in overturning wrongful convictions. Missouri’s state habeas corpus rule is inadequate to provide a remedy to innocent persons who are wrongfully convicted because it requires the innocent person, who may be without counsel, to file and litigate his petition in the county where he is in custody rather than the county of conviction. Missouri Court Rules 29.11 (motion for new trial) and 29.12 (plain error) should be construed to allow a prosecutor to file a motion in the trial court to correct a wrongful conviction.
Ohio v. Kinney
Brief of Amicus Curiae, Office of the Ohio Public Defender [and the National Association of Criminal Defense Lawyers] in Support of Appellant, David C. Kinney, Jr.
Argument: The prohibition in R.C. 2953.08(D)(3)--which is entirely unique to Ohio--is most accurately understood as a legislative oversight with severe unintended consequences. But even if not, it is unconstitutional on both cruel-and-unusual-punishment and equal-protection grounds. Amici Curiae urge this Court to provide meaningful appellate review of sentences for aggravated murder in Ohio.
Ortega Campoverde v. Warden, York County Prison et al.
Brief of Amici Curiae the National Association of Criminal Defense Lawyers and the Center for Legal and Evidence-Based Practices in Support of Appellant Julio Cesar Ortega Campoverde.
Argument: Mr. Ortega Campoverde is challenging the terms of his immigration detention, which include a bond he cannot afford that was set without considering his ability to pay. He argues that the Equal Protection Clause, the Due Process Clause, and the Immigration and Nationality Act require immigration judges in bond hearings to consider both an immigrant detainee’s ability to pay and alternative conditions of release. The amicus brief reviews evidence from the criminal pretrial system to demonstrate that nonmonetary alternatives to detention successfully address the goals of assuring a defendant’s appearance in court and protecting public safety, without overburdening individual liberty. It also reviews the ways in which detention impairs case outcomes, and long-term outcomes for individuals, unrelated to the merits.
Pereida v. Barr
Brief for Amici Curiae National Association of Criminal Defense Lawyers and National Association of Federal Defenders in Support of Petitioner.
Argument: Criminal Court records of conviction are often ambiguous, particularly in misdemeanor cases. In many lower criminal courts, misdemeanor convictions are not "on the record." Misdemeanor records often omit key information about the conviction. Even where misdemeanor records once existed, they may have been destroyed or may be otherwise inaccessible. Because criminal records are often ambiguous, the Eighth Circuit's approach leads to inconsistent immigration outcomes. Under the Eighth Circuit’s approach, two noncitizens convicted of the same divisible misdemeanor offense in different counties in the same state could face different immigration outcomes depending on the completeness of the Shepard documents from their criminal cases. When noncitizens are faulted for the paucity of these records, it creates a system in which immigration outcomes are tied to the bureaucratic decisions of county clerks’ offices and the idiosyncrasies of courts’ guilty plea processes. Such a system is wholly inconsistent with the categorical approach, which seeks to guarantee that “all defendants whose convictions establish the same facts … be treated consistently, and thus predictably, under federal law.” Moncrieffe, 569 U.S. at 205 n.11.
State v. Booker
Brief of the National Association Criminal Defense Lawyers et al. as Amici Curiae in Support of Appellant.
Argument: Tennessee’s sentencing statute for first-degree murder, which mandatorily imposes a minimum 51-year term of prison confinement on a juvenile, without consideration of the teenager’s youth and immaturity or other mitigating circumstances, violates the Cruel and Unusual Punishments Clauses and other provisions of the federal and state constitutions. In Miller v. Alabama, 567 U.S. 460 (2012), and Montgomery v. Louisiana, 577 U.S. 460 (2016), the United States Supreme Court held that, in light of contemporary understanding of adolescent psychology and brain development, it is unconstitutional to mandatorily deprive a juvenile offender of “a meaningful opportunity to obtain release based demonstrated maturity and rehabilitation.” Because a sentence of life without the possibility of parole for 51 years exceeds the expected life-span of offenders sentenced at a young age, it does not provide young offenders with the “meaningful opportunity” for release contemplated by the Supreme Court of the United States. A majority of state court decisions from outside Tennessee have held that term-of-years sentences of over fifty years do not provide young offenders with a meaningful opportunity for release. Further, after Miller and Montgomery, numerous state legislatures have enacted juvenile sentencing and parole procedures allowing juveniles the opportunity for parole within a much shorter time period.
State v. Jackson
Brief of Amici Curiae The American Civil Liberties Union, The American Civil Liberties Union of New Jersey, 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.
TCDLA, et al. v. Abbott
Brief of Amicus Curiae National Association of Criminal Defense Lawyers in Support of Plaintiff
Argument: Texas Governor Greg Abbot’s Executive Order GA-13 of March 29, 2020 seeks to order that Texas judges may not release persons to personal bonds where the person has previously been convicted of a crime that involves physical violence or the threat of physical violence or of a person currently arrested for such a crime; that is supported by probable cause. Leaving aside the vague terms of this executive order, it encroaches on the function of the courts to determine whether persons should be released on personal bond, whether they should be released on electronic monitoring, or should be released on a cash or surety bond with conditions. It does not prohibit release of this same class of described persons on cash or surety bail. Therefore, it appears to place restrictions for release on the poor over those for those of greater means without any rational relationship to a distinguishing important governmental purpose. Thus, those previously convicted of the defined crimes or currently charged with those crimes can obtain release; while those without the economic means to post a cash or surety bail cannot obtain release. Under the circumstances presented by the COVID 19 pandemic and the Texas Criminal justice system, GA 13 violates the separation of powers, interferes with judicial independence, violates equal protection and due process of law, and constitutes cruel and unusual punishment for those who cannot afford cash or surety bail who otherwise qualify for release on personal bond.
Taylor Lohmeyer Law Firm v. United States
Brief of the National Association of Criminal Defense Lawyers as Amicus Curiae in Support of Appellant (in support of petition for rehearing en banc).
Argument: In Lohmeyer, the IRS issued a John Doe summons for the names of all of the clients of the Lohmeyer firm who had sought legal advice concerning off shore tax shelters. The Amicus takes the position that the purpose for which such clients seek legal advice is privileged and thus the identity of those clients who sought the advice is privileged because it would reveal their motive for seeing legal advice.
Tucker v. State of Idaho
Brief of Amici Curiae National Association of Criminal Defense Lawyers and Idaho Association of Criminal Defense Lawyers in Support of Plaintiffs-Appellants.
Argument: Plaintiffs allege systemic deficiencies in Idaho’s provision of public defense services and seek prospective relief. The court is addressing the proper standard to apply to plaintiffs’ claims. Plaintiffs should be required to demonstrate that Idaho’s public defense system presents a substantial risk of harm to members of the plaintiff class. The types of harm that can result from the systemic deficiencies alleged by plaintiffs include overly high bail, unnecessary or overlong pretrial detention, unwarranted guilty pleas leading to negative collateral consequences, lack of time and resources to prepare defenses, wrongful convictions, and economic and social costs to society as a whole.
United States v. Blaszczak
Brief for Amicus Curiae National Association of Criminal Defense Lawyers in Support of Petition for Rehearing or Rehearing En Banc.
Argument: Designating information as confidential is not enough to make it “property” in the government’s hands. This Court should not expand Section 641 and provide the government with an all-purpose tool for prosecuting leaks.
United States v. Bryant
Brief of the National Association of Criminal Defense Lawyers as Amicus Curiae in Support of Appellant Thomas Bryant, Jr., Supporting Reversal.
Argument: Sentencing courts have broad discretion to modify a sentence under Section 3582(c)(1)(A)(i). Sentencing courts have authority to grant motions for compassionate release if the defendant does not meet one of the "extraordinary and compelling reasons" described by the Commission. Vesting sentencing courts with discretion to identify "extraordinary and compelling reasons" is consistent with the judge's role at an initial sentencing and does not open any "floodgates." The District Court's order should be reversed and the case remanded for further proceedings.
United States v. Collazo
Brief of Amicus Curiae National Association of Criminal Defense Lawyers in Support of Defendants-Appellants.
Argument: The presumption of mens rea is deeply rooted and has historically applied beyond merely distinguishing culpable from innocent conduct. The mens rea requirement arose to ensure punishment was fair and proportional. The mens rea requirement applies to offenders guilty of otherwise culpable conduct. The presumption of mens rea contains only a narrow exception for public-welfare offenses. The presumption of mens rea should apply to drug quantity and type under 21 U.S.C. § 841.
United States v. Flynn
Amicus Curiae Brief of the National Association of Criminal Defense Lawyers in Support of Defendant.
Argument: The criminal justice system is a system of plea negotiations that gives prosecutors enormous leverage over criminal defendants. Defendants face a higher sentence if they go to trial, which drives many defendants to take a plea bargain. This “trial penalty” means that some innocent defendants plead guilty. Defendants who plead guilty while maintaining their innocence should not be subject to a sanction of criminal contempt for doing so. Prosecutors may have wholly laudable reasons to dismiss cases even after a plea, and courts should not chill such actions with the threat of a contempt sanction.
United States v. Jackson
Brief of Amici Curiae the American Civil Liberties Union, the National Association of Criminal Defense Lawyers, the American Civil Liberties Union of Ohio Foundation, Due Process Institute, R Street Institute, and Americans for Prosperity Foundation in Support of Defendant/Cross-Appellee.
Argument: The text of §403(b) applies the sentencing amendments to §924(c) at resentencing. The text of §403(b), not the savings statute, governs application of the sentencing amendments. Background principles confirm that §403 applies at resentencing. The government’s rule serves no purpose. The government’s contrary arguments fail. Congress enacted the First Step Act to reform §924(c). In accordance with the text, context, and purpose of the First Step Act, this Court should hold that the sentencing amendments in §403 apply to sentences imposed after the First Step Act’s effective date, including at a de novo resentencing.
United States v. Raia
Brief of Amici Curiae National Association of Criminal Defense Lawyers and FAMM in Support of Defendant/Appellee’s Petition for Rehearing and/or Rehearing En Banc.
Argument: Appellee Raia’s Petition for Rehearing addresses the discretion of a district court to excuse the 30-day waiting period for compassionate release under the First Step Act, 18 U.S.C. §3582(c)(1)(A). On April 2, 2020, the Panel declined to remand this case under Federal Rule of Appellate Procedure 12.1, stating that remand would be “futile.” In so ruling, the Panel necessarily concluded that the 30-day waiting period cannot be excused or waived. That conclusion was inconsistent with both Supreme Court and Circuit precedent. The ruling creates inconsistency in the Circuit’s treatment of all claims-processing rules, and undermines courts’ equitable authority in a wide range of cases. The30-day waiting period is a nonjurisdictional claims-processing rule. Courts may excuse noncompliance with that rule absent an express prohibition on doing so. Remand is therefore not “futile.” The Panel’s sua sponte conclusion to the contrary was error. Rehearing should be granted to correct the Panel’s error and confirm that judges are empowered to address “extraordinary and compelling” circumstances even when they arise exigently. At a minimum, the Panel should grant rehearing and order full briefing on this important issue, which was neither decided below nor fully briefed on appeal.
United States v. Sineneng-Smith
Brief of the National Association of Criminal Defense Lawyers and National Association of Federal Defenders as Amici Curiae in Support of Respondent.
Argument: 8 U.S.C. § 1324(a)(1)(A)(iv)’s criminalization of a person who “encourages or induces an alien to come to, enter, or reside in the United States knowing or in reckless disregard of the fact” that it would be in violation of the law is unduly broad under the First Amendment. The prohibition also violates the void-for-vagueness doctrine under the Due Process Clause of the Fifth Amendment. “Encouragement” and “Inducement” are indefinite terms and depend on subjective determinations. This provides insufficient notice to the public and invites arbitrary and selective enforcement. The statute’s failure to specify a mens rea for “encourages or induces” exacerbates this problem. The statute would also chill First Amendment-protected speech.
Van Buren v. United States
Brief of the National Association of Criminal Defense Lawyers as Amicus Curiae in Support of Petitioner (on Petition for a Writ of Certiorari).
Argument: In this case, the Eleventh Circuit reaffirmed that a person violates the CFAA by using a computer to access information for an improper purpose, even if that person is otherwise authorized to access that information. This holding warrants review because it reinforces a conflict of authority regarding the meaning of “authorized access” under the CFAA and because the Eleventh Circuit was wrong on the merits. Review also is warranted because the question presented is important. Computers are ubiquitous in daily life. It is important that the Court clarify that ordinary deviances from terms-of-use requirements— whether imposed by internet websites or private company use guidelines, to name but a few—are not criminal. Review also is necessary because the Eleventh Circuit’s decision deviates from settled practices for construing federal criminal statutes. Because the Eleventh Circuit’s decision and those courts on its side of the open and acknowledged split of authority break from this approach at every level, this Court should grant review.
Van Buren v. United States
Brief of the National Association of Criminal Defense Lawyers as Amicus Curiae in Support of Petitioner.
Argument: The Eleventh Circuit reaffirmed that a person violates the CFAA by using a computer to access information for an improper purpose, even if otherwise authorized to access that information. This reading goes beyond the CFAA’s text, fails to account for Congress’ intent in enacting it, and flouts the rule of lenity, which requires that ambiguous criminal statutes be construed in a defendant’s favor. The decision below also interpreted the CFAA in a manner that raises due process concerns, both because it is an unconstitutionally vague reading of the statute and because it invites arbitrary and discriminatory enforcement, and thus the doctrine of constitutional avoidance requires that Petitioner’s reading of the statute prevail. Further, an expansive reading of the CFAA would contribute to the trend of overcriminalization and give courts and prosecutors a backdoor method of updating criminal laws in response to changed technological—or potentially cultural, economic, or political—realities, something our constitutional structure reserves for Congress.
Vermont v. Sanville
Memorandum of Amici Curiae the National Association of Criminal Defense Lawyers and the American Civil Liberties Union Foundation of Vermont.
Argument: The COVID-19 pandemic is of unprecedented national and global significance, necessitating a drastic local response. The rate of infection in the Vermont DOC is striking in comparison both to the rate of infection in Vermont as a whole, and even compared to the highest rate of infection for any state in the country. The Department of Corrections is demonstrably ill-equipped to adequately respond to the pandemic, and the Court must intervene to protect the constitutional rights of those incarcerated. The Court should join with judges from other jurisdictions across the country, who have reviewed inmate motions and petitions similar to those that are currently before this Court, and who have taken steps to reduce incarceration by releasing inmates on bail in light of this unprecedented pandemic and the conditions of confinement issues it brings to light.
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