NACDL files amicus briefs in federal and state courts across the nation in those cases that present issues of importance to criminal defendants, criminal defense lawyers, and/or the criminal legal system as a whole. NACDL is one of the most successful of the frequent amicus contributors to the nation’s state and federal courts, in part because NACDL draws upon the collected expertise of the nation’s criminal defense bar.

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.

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.

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.

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.

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. 

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.

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. 

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.

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. 

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.

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.

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. 

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.

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.