Amicus Briefs Filed in 2020

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.

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.

Alasaad v. Wolf

Corrected Brief of Amicus Curiae National Association of Criminal Defense Lawyers in Support of Plaintiffs-Appellees and Affirmance.


Argument: The government's practice of warrantlessly searching travelers' electronic devices at the border violates the Fourth and Sixth Amendments. For many criminal defense lawyers, their work compels them to cross the border with their devices, which they use as their virtual law office. The attorney-client privilege and the Constitution protect the information on those devices. Requiring the government to get a warrant for device searches at the border would trigger the judicial supervision that is necessary to protect that information and associated rights.

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.

Baughman v. Virginia

Brief of the National Association Of Criminal Defense Lawyers and Delegate Patrick A. Hope as Amici Curiae in Support of Petition for Appeal.


Argument: The Circuit Court Violated Virginia law and due process by allowing the Commonwealth to expert-shop and admitting only its second, illegally obtained expert opinion. The Circuit Court violated Virginia law and due process by arbitrarily precluding Mr. Baughman from presenting testimony by Dr. Gravers and Dr. Krueger in his defense at trial.

Birt v. United States

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


Argument: Certiorari is warranted because the Third Circuit’s decision prohibits a whole class of crack-cocaine offenders from being eligible for resentencing under the First Step Act while identically situated defendants in other circuits may be resentenced.  The Third Circuit’s rule is inconsistent with Congress’s goal of providing relief to low-level drug offenders because it excludes the lowest-level offenders and those with uncertain drug amounts from resentencing while allowing those who possessed greater amounts of crack cocaine to obtain relief.  Defendants convicted for possessing lower-quantities of crack cocaine could receive substantial sentence reductions even though they remain eligible for the same sentence.  The Third Circuit’s rule frustrates Congress’s goal of providing relief to the disproportionate number of Black Americans incarcerated for crack-cocaine offenses.

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.

Borden v. United States

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


Argument: If this Court were to hold that an offense with a mens rea of recklessness qualifies as a “violent felony” under the Armed Career Criminal Act (“ACCA”), 18 U.S.C. § 924(e), it would expand the reach of ACCA’s severe sentencing consequences to defendants whose predicate offenses bear little, if any, resemblance to the knowing and purposeful acts of violence Congress intended to target. Such a broad application of ACCA is wrong as a matter of law, and it would result in unjust and disproportionate sentences for defendants nationwide. ACCA’s force clause does not reach reckless offenses. The text of ACCA’s force clause, like the clause at issue in Leocal and unlike the clause in Voisine, does not cover reckless offenses. Excluding reckless offenses comports with ACCA’s purpose, in contrast to the gun-control provision in Voisine. ACCA should not apply to reckless offenses absent a clear indication from congress. The court has at least as much reason to apply lenity here as it did in Leocal. Application of the rule of lenity here would avoid the pernicious effects of a broad reading of ACCA.

Brown v. Lumpkin

Brief of Amicus Curiae the National Association of Criminal Defense Lawyers in Support of Petitioner’s Objections to Magistrate Judge’s Order.


Argument: Investigations by telephone, rather than in-person, deprive Brown of effective assistance of counsel. Defense counsel’s ability in a death penalty case to effectively represent the client is derived from “the overarching duty to advocate the defendant’s cause.” This duty is even more critical in capital cases, since “‘the penalty of death is qualitatively different’ from any other sentence.” As such, capital cases require a “greater degree of reliability when the death sentence is imposed.” However, reliability is only attainable when defense counsel is able to adequately investigate and prepare, which is fundamental to attorney competence. Inhibiting defense counsel’s ability to investigate renders counsel ineffective and harms the client. In fact, several courts have found defense counsel constitutionally ineffective for failing to conduct an in-person investigation. The Magistrate’s Order asks counsel to ignore ethical obligations under standards governing capital cases. A mitigation investigation in a capital case must not deviate from the American Bar Association Guidelines for the Appointment and Performance of Council in Death Penalty Cases and the Supplementary Guidelines for the Mitigation Function of Defense Teams in Death Penalty Cases. Capital life sentence investigations must be conducted according to well-established best practices. The ABA Guidelines, the Supplementary Guidelines, and Texas Guidelines articulate the national and state standards regarding the investigation obligations of defense teams in such cases.

Clarington v. State

Brief of Amicus Curiae for the National Association of Criminal Defense Lawyers, Florida Association of Criminal Defense Lawyers, and Florida Public Defender Association.


Argument: It violates the accused’s constitutional rights to be forced to have a probation violation hearings via Zoom or other remote means. The practice offends the right to be present (in the courtroom before the judge, with witnesses, with the accused’s own counsel) and ignores certain provisions in the Criminal Procedure.  Because counsel is remote, it also offends the right to effective assistance of counsel. By way of background: The circumstance of forced remote probation hearings has arisen in the context of the Covid-19 pandemic. At the beginning of the pandemic, the Supreme Court of Florida issued a vast administrative order basically suspending any Florida Rule of Procedure that prohibited remote proceedings. The administrative order permits pleas, status conferences, and motion practice by Zoom.

Daniels v. Taylor

Brief Of Amici Curiae American Civil Liberties Union, Bronx Defenders, Cato Institute, Center for Appellate Litigation, Center on The Administration of Criminal Law at New York University School Of Law, Legal Aid Society, National Association of Criminal Defense Lawyers, National Police Accountability Project, New York Civil Liberties Union, New York State Chief Defenders Association, New York State Association of Criminal Defense Lawyers, and Office of the Appellate Defender Supporting Reversal.


Argument: Evidence fabrication is a serious and pervasive problem, and its innocent victims often do not obtain an “indication of innocence.” Requiring indicia of innocence for civil rights claims of evidence fabrication is unfair and unworkable. McDonough does not affect the substantive difference between malicious prosecution claims and fabrication claims, which address corruption of the criminal process regardless of probable cause. The District Courts’ rule would be unjust, unfair, and unworkable. The District Courts’ rule undermines the core accountability function of § 1983 in cases of very serious misconduct. The District Court’s rule would harmfully exacerbate the existing power imbalance against criminal defendants. The District Courts’ rule is not administrable and will yield arbitrary results.

Davis v. Washington

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


Argument: Cross-examination ensures the integrity of the adversarial process. The appointment of standby counsel is the most appropriate means to solve the problems that this court has acknowledged with pro se representation in criminal courtrooms. 

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.

Friend v. Indiana

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


Argument: Records needed for adversarial testing of witness testimony are particularly important in child abuse cases. In camera review preserves defendants’ constitutional rights and the interests of privilege holders. 

Georgiou 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 Honeycutt v. United States, the Supreme Court held that the government may not impose a forfeiture order against a criminal defendant on the basis of joint and several liability, overturning decades of precedent to the contrary. Before Honeycutt, many forfeiture orders were imposed on defendants based on their joint and several liability. When habeas relief is unavailable, these defendants should be able to obtain relief through an extraordinary writ, such as the writ of coram nobis or audita querela, for three reasons. First, these forfeiture orders were issued without lawful authority and therefore violate due process. Second, these forfeiture orders exceed what Congress has deemed permissible and therefore violate the Eighth Amendment. And third, allowing these forfeiture orders to stand in light of these due process and Eighth Amendment violations is not in the public interest.

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.

Hemphill v. New York

Brief Of Amicus Curiae National Association Of Criminal Defense Lawyers in Support of Petition for Writ of Certiorari.


Argument: Broad forfeiture rules chill vital defense arguments. Broad forfeiture rules force defendants into a Hobson’s choice between constitutional rights. Broad forfeiture rules undermine the institution of the criminal trial. NACDL submits this brief in support of the petition for certiorari because the issue presented in this case—whether a criminal defendant who “opens the door” to responsive evidence also forfeits the right to exclude evidence otherwise barred by the Confrontation Clause—is of paramount importance to criminal defense attorneys throughout the country and the clients they represent. 

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. 

Kendricks v. Parris

Brief Of Amici Curiae The Tennessee Innocence Project, National Association of Criminal Defense Lawyers, and Tennessee Association of Criminal Defense Lawyers in Support of Petitioner.


Argument: Investigation of the prosecution’s scientific or technical evidence on critical facts essential to the defense is a necessary part of rendering constitutionally adequate counsel. Counsel’s investigation of forensic sciences and techniques related to a fact essential to a defense is critical because of the powerful impact expert testimony has at trial. The National Research Council of the National Academy of Science’s report on the forensic science community highlights the shortcomings of the field as well as the powerful impact that faulty forensic science can have on those accused of a crime. Extensive research has shown a positive correlation between faulty forensic science testimony and the wrongful conviction of those accused of a crime. The United States Supreme Court’s analysis of defense counsel’s responsibilities to investigate and obtain expert assistance in Hinton v. Alabama directly applies to this case. Trial counsel’s failure to introduce Inspector Miller’s statements through the excited-utterance exception is the kind of unforced error that the Supreme Court recognizes as constitutionally inadequate. 

Kousisis v. United States

Brief of Amici Curiae the Cato Institute, the National Association of Criminal Defense Lawyers, Americans for Prosperity Foundation, and Due Process Institute in Support of Petitioner-Appellant.


Argument: The Supreme Court has consistently rejected attempts to apply the federal criminal property fraud statutes beyond their clearly intended and expressed scope. Applying the federal criminal property fraud statutes to breaches of contractual provisions like the DBE requirement would violate the fundamental principles regarding notice, federalism, and avoiding overcriminalization that motivate the Supreme Court’s decisions.

Lange v. California

Brief of National Association of Criminal Defense Lawyers and California Attorneys for Criminal Justice as Amici Curiae in Support of Petitioner (On Merits).


Argument: A rule categorically permitting warrantless entry into a private residence in pursuit of a fleeing misdemeanant would be dangerously overbroad and conflict with long-standing Fourth Amendment jurisprudence requiring case-by-case analysis of whether exigent circumstances justify the entry. An extensive survey of cases involving such entries reveals that many spiral out of control, often resulting in property damage and personal injury to officers, suspects, and innocent third parties. Further, law enforcement interests typically justifying warrantless entries—preventing evidence destruction or protecting the safety of officers and the public—are not implicated in many misdemeanant pursuits. A case-by-case approach would permit warrantless entry when a particular misdemeanant poses a serious threat to people or evidence while encouraging officers to briefly pause and seek a warrant in the many cases where neither the suspected crime nor the circumstances of the pursuit justify putting lives or property at risk.

Lange v. California

Brief of National Association of Criminal Defense Lawyers and California Attorneys for Criminal Justice as Amici Curiae in Support of Petitioner.


Argument: NACDL and CACJ join to support a petition to the United States Supreme Court to review a California State Appellate Court decision expanding the “community caretaking” exception to the Fourth Amendment warrant requirement to the home in all misdemeanor cases. The case involved a domestic dispute in which the wife viewed the husband as potentially suicidal and called officers.  While the petitioner/husband was taken for examination (and later released), the officers entered the home and seized petitioner’s guns.  Authorities refused to return the guns until petitioner sued for numerous constitutional violations.  The trial court dismissed the suit on caretaking grounds, as did the court of appeals.  The amicus brief, following an extensive review of warrantless entries in misdemeanor cases (especially “failure to obey” cases) details numerous instances in which grievous and unnecessary harm resulted from the warrantless entry.

Leaders of a Beautiful Struggle v. Baltimore Police Department

Brief Of Amici Curiae Electronic Frontier Foundation, Brennan Center For Justice, Electronic Privacy Information Center, Freedomworks Foundation, National Association Of Criminal Defense Lawyers, And Rutherford Institute In Support Of Plaintiffs-Appellants’ Petition For Rehearing En Banc.


Argument: Rehearing en banc is necessary because the panel’s opinion contradicts two controlling Fourth Amendment principles. First, surveillance technologies that collect detailed records about people’s movements, like Baltimore’s Aerial Investigative Research (AIR) program, infringe on individuals’ reasonable expectations of privacy. Second, the “special needs” exception to the warrant requirement does not apply where, as here, a police surveillance program serves only as a law enforcement investigatory tool. Rehearing is also warranted by the important technological and social aspects of this case. Baltimore’s AIR program comprehensively tracks the movements of a half-million people as they travel throughout the city, and it is integrated into the city’s vast surveillance camera and automated license plate reader (ALPR) networks. Other vendors are following AIR’s maker, Persistent Surveillance Systems (PSS), into this new market for advanced police aerial surveillance technologies.  These police “eyes in the sky” chill free speech and assembly in public places, raising serious First Amendment concerns. This case also exemplifies the disparate burden of government surveillance borne by communities of color—a problem described as “the color of surveillance.” Police experiment with, and eventually deploy, intrusive technologies like the AIR program in cities with large communities of color. Before Baltimore, PSS operated surveillance flights above Compton, California; Philadelphia, Pennsylvania; and Dayton, Ohio. The company also seeks to conduct surveillance of St. Louis, Missouri. Further, authorities have routinely deployed aerial surveillance technologies against individuals participating in racial justice movements, like those protesting against the police killings of George Floyd in Minneapolis, Michael Brown in Ferguson, and Freddie Gray in Baltimore. The combination of these racial disparities and the novel surveillance technique at issue here thus justifies rehearing this case en banc. And the legal errors in the panel’s opinion require it.

Lombardo v. City of St. Louis

Brief of the National Association of Criminal Defense Lawyers and the American Civil Liberties Union as Amici Curiae in Support of Petitioners. 


Argument: This case asks whether a reasonable jury could find that police officers use excessive force when they kill a shackled and handcuffed arrestee inside of a jail cell by compression asphyxiation. The Eighth Circuit’s decision departs from an otherwise uniform national rule established by all other courts of appeals that have addressed the issue that the Fourth and Fourteenth Amendments categorically prohibit the asphyxiation of a restrained arrestee or pre-trial detainee who poses no threat to officers or others. The national rule applied outside of the Eighth Circuit is the only rule that conforms to the Supreme Court’s cases governing the use of deadly force, is deeply rooted in the Fourth Amendment and prevailing common-law rules, and is consistent with statutes and law enforcement policies already in effect across American jurisdictions. Categorically prohibiting the use of deadly force, such as compression asphyxia, on restrained citizens is essential to the fair administration of criminal justice. 

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.

Manzano v. United States

Brief Of The Cato Institute, FAMM Foundation, and National Association Of Criminal Defense Lawyers as Amici Curiae Supporting Petitioner (in support of petition for writ of certiorari).


Argument: The independence of citizen juries is a well-established and crucial feature of our legal and constitutional history. The District Court’s openness to permitting evidence and argument as to the consequences of a conviction is a reasonable exercise of the court’s discretion not subject to control by mandamus. The District Court’s provisional decisions thoughtfully harmonize different threads of modern case law, respecting the jury’s traditional authority to issue conscientious acquittals while still operating within the strictures of precedent. Permitting a jury to hear evidence about the consequences of conviction is especially reasonable in a case with a severe and surprising mandatory minimum. Protecting jury independence is all the more important given the vanishingly small role that jury trials play in our criminal justice system.

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.

Moore v. Stirling

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


Argument: Martinez recognized that its equitable remedy is necessary to ensure that state post-conviction counsel adequately protects the Sixth Amendment right to counsel. The right to effective assistance of counsel is a bedrock principle in our criminal justice system. Martinez mandates federal judicial review of trial counsel ineffectiveness where state post-conviction counsel performed in a constitutionally deficient manner. The Fourth Circuit’s application of “Fair Presentation” principles eviscerates Martinez. Certiorari is warranted to provide clarity to lower courts and practitioners, and enforce this Court’s mandate in Martinez. Courts of Appeals are divided on how to apply Martinez. Lower courts and practitioners require guidance on how the Supreme Court interprets Martinez.

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.

Onley v. United States

Brief of Amici Curiae Public Defender Service and National Association of Criminal Defense Lawyers in Support of Appellant.


Argument: First, the D.C. COVID-19 Emergency Act authorized compassionate release for "extraordinary and compelling" reasons not specifically enumerated in the statute, including a prisoner's heightened vulnerability to COVID-19. Second, courts must consider all relevant evidence in assessing the defendant's vulnerability to COVID-19, regardless of whether the defendant's particular medical conditions have been identified by the CDC as clear risk factors for severe illness from COVID-19. Third, good time credit counts toward the percentage of the sentence served under the statute. Fourth, rulings on compassionate release motions are subject to ordinary appellate review for abuse of discretion.

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.

People v. Donthe Lucas

Brief of Amici Curiae Colorado Criminal Defense Bar and National Association of Criminal Defense Lawyers in support of Defendant-Petitioner. 


Argument: Mr. Lucas is held in a county jail without bail pending trial on a charge of first degree murder. In this original proceeding, the Colorado Supreme Court will determine whether the trial erred in denying Mr. Lucas’ motion to require the sheriff to keep professional consultation visits confidential. The Sheriff has a policy to inform the district attorney of the professional consultation visits received by Mr. Lucas. The amicus brief argues that the right to prepare a defense in secret is a necessary corollary to a defendant’s constitutional rights to due process, equal protection, and the effective assistance of counsel. When the prosecution prematurely learns the identity of consulting defense experts, the prosecution gains an unfair advantage in trial preparation, rendering the trial fundamentally unfair. The Sheriff can only provide this information when the defendant is incarcerated pretrial, denying equal protection to indigent and otherwise non-bondable defendants. An express recognition that defendants must be granted a fair opportunity to prepare their defense with sufficient secrecy to protect their pretrial strategy from disclosure is consistent with reciprocal discovery rules which require disclose of defense experts only if they will be called as trial witnesses and with the attorney work-product doctrine. Defense lawyers will also be rendered constitutionally ineffective if forced to alter strategies for consulting with experts solely because a defendant is jailed pretrial.

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. 

Smalls v. Collins

Brief Of Amici Curiae American Civil Liberties Union, Bronx Defenders, Cato Institute, Center for Appellate Litigation, Center on The Administration of Criminal Law at New York University School Of Law, Legal Aid Society, National Association of Criminal Defense Lawyers, National Police Accountability Project, New York Civil Liberties Union, New York State Chief Defenders Association, New York State Association of Criminal Defense Lawyers, and Office of the Appellate Defender Supporting Reversal.


Argument: Evidence fabrication is a serious and pervasive problem, and its innocent victims often do not obtain an “indication of innocence.” Requiring indicia of innocence for civil rights claims of evidence fabrication is unfair and unworkable. McDonough does not affect the substantive difference between malicious prosecution claims and fabrication claims, which address corruption of the criminal process regardless of probable cause. The District Courts’ rule would be unjust, unfair, and unworkable. The District Courts’ rule undermines the core accountability function of § 1983 in cases of very serious misconduct. The District Court’s rule would harmfully exacerbate the existing power imbalance against criminal defendants. The District Courts’ rule is not administrable and will yield arbitrary results.

South Carolina v. Robinson

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


Argument: Kenneth Robinson’s case is a quintessential example of why people plead guilty under the threat of a trial tax. Kenneth withstood the immense pressure to plead guilty. A child of only fifteen, charged with murder under the “hand of one, hand of all” doctrine, he exercised his right to a jury trial, foregoing a twenty-three-year offer to plea to manslaughter. He refused to relinquish his right to appeal, foregoing a thirty-year plea offer following guilty verdicts at trial. He paid the price. Most defendants plead guilty to avoid the trial tax; Kenneth went to trial, and the trial tax was levied against him in the form of a fifty-year sentence. By contrast, Kenneth’s co-defendants pleaded guilty and received significantly shorter sentences. NACDL is uniquely positioned to observe the criminal justice system. Over time, based on empirical data and the experiences of its members, NACDL has developed an understanding of the trial tax—the reality that individuals who choose to exercise their Sixth Amendment right to trial face exponentially higher sentences if they invoke the right to trial and lose. It is NACDL’s position that the trial tax is antithetical to the American concept of justice because it diminishes jury trials, undermines the legal system’s goal of truth-seeking, relieves the government of its burden of proof, contributes to wrongful convictions, and disproportionately hurts young people. Kenneth Robinson’s case in particular starkly reveals the dangers to a defendant who chooses to exercise his constitutional right to trial.

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.

Terry v. Stirling

Brief of National Association of Criminal Defense Lawyers as Amici Curiae in Support of Appellant and Reversal.


Argument: The Sixth Amendment requires trial counsel to investigate mitigating factors in a death penalty case. The duty to investigate mitigating factors extends to investigating evidence of trauma and abuse. The duty to investigate abuse and trauma was well established when Terry was sentenced to death in 1997. The duty to ensure a constitutionally adequate social history investigation lies squarely with trial counsel. Trial counsel does not fulfill their Sixth Amendment obligations merely by hiring experts. Trial counsel is required to actively oversee the mitigation investigation. The decision below departs from that precedent. The district court erred in finding that trial counsel conducted an adequate investigation. The district court erred in attributing trial counsel’s errors to Terry’s experts. 

Torres v. Madrid

Brief Of The Rutherford Institute And National Association Of Criminal Defense Lawyers As Amici Curiae In Support Of Petitioner.


Argument: If the Fourth Amendment does not apply here, then Ms. Torres will have no remedy at all. The Tenth Circuit’s ruling means that objectively un-reasonable police action that seriously injured the target of that action is not subject to Fourth Amendment scrutiny simply because the officer’s attempt to detain the target is initially unsuccessful. This approach is incorrect, not least because it would deprive plaintiffs like Ms. Torres of any remedy for serious injuries suffered at the hands of police officers. The decision below contradicts this Court’s jurisprudence. Furthermore, the Tenth Circuit’s approach is inconsistent with the way this Court has reviewed excessive-force cases in the past. Graham specifically held that “all claims that law enforcement officials have used excessive force—deadly or not—in the course of an arrest, investigatory stop, or other ‘seizure’ of a free citizen should be analyzed under the Fourth Amendment and its ‘reasonableness’ standard.” The Tenth Circuit’s ruling expands the unjustifiably significant disparity that already exists between liability for civilians and for police officers. This Court should recalibrate the balance in our society’s laws—more respect for individual liberty, and less accommodation of police excessive force. 

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. Blaszczak

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


Argument: The Second Circuit’s interpretations of “property” and “thing of value” violate this Court’s precedents. Deeming regulatory information “confidential” does not give the government a property interest in that information. Confidential information about regulatory plans is not “a thing of value” under Section 641. The Second Circuit’s interpretations of “property” and “thing of value” criminalize core First Amendment activity.

United States v. Briggs; United States v. Collins; United States v. Daniels

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


Argument: First, there must be a specific reason not to apply the Eighth Amendment to the Constitution to servicemembers. As there is no issue of military importance that excludes servicemembers from the protections of the Eighth Amendment, rape of an adult cannot be an “offense punishable by death.” Under the Supreme Court’s interpretation of the Cruel and Unusual Punishment Clause of the Eighth Amendment, the crime of rape of an adult cannot be punishable by death. Petitioner has not met its burden to provide a military-specific exception for the application of the Eighth Amendment to servicemembers. Here, the Petitioner offers policy prescriptions and “national security” reasons which are insufficient to deprive a service-member of his or her constitutional rights. Further, canons of statutory interpretation require that Article 43 must be read to protect applicable constitutional rights. Specifically, sections in the same statutory scheme should be read in pari materia, or interpreted together. Article 43, at the time of Respondents’ alleged offenses, had no statute of limitations for crimes punishable by death, including rape, but established a five-year limitation otherwise; however, Article 55 prohibits cruel and unusual punishment, mirroring the Eighth Amendment. Applying Supreme Court precedent that precludes death as a punishment for rape of an adult, Article 43 read in conjunction with Article 55 requires that rape was subject to a five-year statute of limitations at the time of the alleged offenses. Lastly, civilian law must inform the interpretation of the UCMJ. The CAAF may not freely disregard Supreme Court precedent without a “legitimate military necessity or distinction.” Therefore, the CAAF’s decision to reverse Respondents’ convictions should be affirmed.

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. Esformes

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


Argument: Harmless error is an inadequate standard for review in cases of pervasive and far-reaching prosecutorial misconduct. The present case included an invasion and use of an accused’s attorney-client privileged conversations and attorney work product privileged documents. Because of the toxic effect on the proceedings, alleged prosecutorial misconduct cannot be adequately measured by the evidence against the accused in harmless error analysis. Rather, when prosecutorial misconduct is obviously illegal or forms a pattern of unlawful behavior it so offends the Due Process clause that the court should treat it as a structural error. Amici assert the prosecutorial misconduct in the present case is analogous to the “interested prosecutor” a recognized structural error. Amici argue the Court should treat the present prosecutorial misconduct as a structural error and dismiss the case. Such a result serves both the interests of the defendant in a fair proceeding and the public in seeing justice done.

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. Keleher

The National Association of Criminal Defense Lawyers’ Memorandum of Law Amicus Curiae in Support of Defendants.


Argument: A government’s exercise of its contracting authority is not a cognizable form of “money or property” under the federal mail, wire, or program fraud statutes charged. NACDL expressed its interest in maintaining the necessary limits on the federal fraud statutes that the Supreme Court has imposed time and again. Reducing and resisting overcriminalization is a core issue for NACDL, and this case presents an issue squarely within that mandate.

United States v. Maxwell

Brief of the Federal Public and Community Defenders for the Judicial Districts of the Sixth Circuit and the National Association of Criminal Defense Lawyers as Amici Curiae in Support of Reversal.


Argument: The career offender guideline is problematic. The impact of the career offender guidelines was even more severe before the Fair Sentencing Act of 2010. The severity of the career offender guideline does not advance the purposes of sentencing. The career offender guideline has an unwarranted adverse impact on Black defendants. A career offender sentence creates rather than avoids unwarranted disparity in the ordinary case. Courts must take special care when considering the need to avoid unwarranted disparity for those deemed career offenders and eligible for First Step Act relief.

United States v. Pierucci (Hoskins)

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


Argument:  The Foreign Corrupt Practices Act (FCPA) applies to “an officer, director, employee, or agent” of a domestic concern or issuer.  The Government argues that “agent” means a common-law agent, but that reading of the statute is entirely at odds with both the FCPA’s plain text and the Act’s legislative history.  Congress intended for “agent” to mean a specific type of individual:  a foreign intermediary used to pay bribes.  If “agent” meant “common-law agent,” as the Government says, there would have been no need for Congress to specify “officer” or “employee”—both are “common-law agents.”  The legislative history also demonstrates that Congress had bribe-paying foreign “consultants” or “intermediaries” in mind when it crafted the FCPA to cover “agents.”  Reading the word “agent” broadly would raise serious concerns about extraterritorial application that Congress specifically sought to avoid.  Such a reading would also run afoul of well-established principles of lenity.

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. Scott

Brief of Amici Curiae Defense Organizations in Support of Defendant-Appellee and Affirmance.


Argument: New York First Degree Manslaughter is not an ACCA Predicate. New York First Degree Manslaughter is not a predicate under the career offender guidelines.

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.

Walters v. Martin

Brief of National Association of Criminal Defense Lawyers (NACDL) as Amicus Curiae in Support of Petitioner-Appellant.


Argument: Walters’ counsel’s utter failure to communicate constructively denied him counsel so prejudice should be presumed. Alternatively, Mr. Walters established prejudice under Strickland and Frye resulting from his counsel’s pervasive neglect. There is a reasonable probability that the favorable March plea offer would have been accepted and entered if counsel had communicated with Mr. Walters. If Mr. Stanley’s deficient performance is instead viewed as a series of separate errors, Strickland compels a cumulative consideration of prejudice.

 

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