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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.
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.
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.
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. 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.
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. 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.
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.
Pattern Cross-Examination of Expert Witnesses: A Trial Strategy & Resource Guide
In a criminal trial, cross-examination of the prosecution’s forensic expert may make the difference between victory or defeat.
2020 Sample Motions Collection Update
NACDL’s 2020 Sample Motions Collection is the follow-up to our wildly popular 2019 Sample Motions Collection and contains the newest and most recent additions to our ever-expanding Sample Motions library.
State v. Stone - A Case Study on Child Sexual Molestation & Sexual Battery
The criminal defense attorney tasked with defending such a case has to be prepared to not only show reasonable doubt, but to answer this question: If it did not happen, how is it that the child believes it did happen?
POZNER ON CROSS: Advanced Cross of Experts & Officers in DUI Cases
It’s not your strong opening argument. It’s not how many of your impassioned objections the judge sustains. It’s not even how you tie your theory of the case together with a dazzling closing statement bow. What wins your trial is your cross.
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