Amicus Curiae Brief of the Petitioner, National Association of Criminal Defense Lawyers in Support of the Real Party in Interest.
 

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

Argument: When a police officer obtains custodial statements from a defendant in violation of Miranda and the prosecution introduces those statements at trial, the Fifth Amendment is violated and the defendant thus may sue officers under Section 1983 for damages. Even though the Court has sometimes described Miranda as a "prophylactic rule," the Court confirmed in Dickerson that the rule is indeed grounded in the Constitution.  The only question in such a Section 1983 case, therefore, is whether the officers' actions were the proximate cause of the constitutional violation. At least in a case such as this, where the prosecution introduced the statements at least in part because the officers failed to provide them with complete and truthful account of the circumstances under which the statements were taken, causation is satisfied because the constitutional violation was the direct and foreseeable consequence of the officers' actions.

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

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; American Civil Liberties Union Foundation; American Civil Liberties Foundations of Delaware, New Jersey, and Pennsylvania, In Support of Defendant-Appellee.

Mission statement, protocols, and roster for NACDL's amicus curiae program

Brief of American Civil Liberties Union, American Civil Liberties Union of Massachusetts, Inc., National Association of Criminal Defense Lawyers, and the Rutherford Institute as Amici Curiae in Support of Respondent.

Argument: NACDL’s amicus brief argues that in the sentencing phase of his capital trial, Dzhokhar Tsarnaev sought to introduce evidence in mitigation that his older brother Tamerlan Tsarnaev had previously enlisted an accomplice to commit a brutal triple murder and robbery on the ten-year anniversary of September 11, 2001. Tamerlan bound, beat, and slit the throats of three men (one a childhood friend) in the name of jihad.  This evidence supported Dzhokhar’s core mitigation theory that his older brother was a violent jihadist who influenced him to participate in the Boston Marathon bombings and was more culpable for those crimes. But the district court excluded it. Tamerlan’s previous jihadist murders and recruitment of an accomplice are powerful pieces of mitigation evidence, and 18 U.S.C. § 3593(c) provides no basis to exclude them. “Waste of time” is not a basis for exclusion under Section 3593(c). The proposed mitigation evidence created no danger of “confusing the issues.” Section 3595(a)’s harmless error standard is demanding, and the Government fails to meet it here. The Government fails to show beyond a reasonable doubt that the jury was just as likely to disbelieve Dzhokar’s core mitigation theory if it had seen the Waltham evidence.  The Government also fails to show beyond a reasonable doubt that the jury would have sentenced Dzhokhar to death even if it believed Dzhokhar acted under Tamerlan’s influence.

Brief in Support of Appellant of Amici Curiae National Association of Criminal Defense Lawyers, Maryland Criminal Defense Attorneys Association, and the Innocence Network.

Argument: NACDL’s amicus brief argues that the State’s misconduct in this case was truly startling; indeed, it is among the most serious examples of prosecutorial misconduct in amici’s collective experience.  The record shows that the prosecution: (1) suppressed “a fountain of favorable evidence from the defense”; (2) “[s]ponsored dubious claims from a credibility-ravaged witness who tainted every other prosecution witness”; (3) “made serial false representations to the defense, to jurors, and to the trial court about critical exculpatory evidence”; and (4) testified falsely under oath to hide its misconduct.  This misconduct was an attempt to shore up a weak case in which there was no physical evidence to link Mr. Smith or his co-defendants to the crime, and there was physical evidence that pointed away from them.  Authority from jurisdictions throughout the country supports the dismissal of the indictment under these circumstances.  Prosecutorial conduct that is “so grossly shocking and outrageous as to violate the universal sense of justice” requires dismissal of a resulting prosecution on due process grounds.  A case also can be dismissed under a court’s supervisory powers even if “the conduct does not rise to the level of a due process violation.”  The egregious misconduct found by the court of appeals satisfies either standard.  Retrial would not adequately address the egregious misconduct that occurred in this case because (1) the extensive misconduct here was unusually extreme and shocks the conscience, and it created pervasive prejudice that would prevent Mr. Smith from receiving a fair retrial, and (2) any remedy short of dismissal would be inadequate to deter the type of intentional, willful, and reckless misconduct that the court of appeals recognized and the State now admits.  While dismissal is an extreme remedy, courts have invoked it regularly in cases with extreme facts of the type found here. 

Nonparty Brief of National Association of Criminal Defense Lawyers.

Argument: NACDL’s amicus brief argues that lengthy delays in the appointment of counsel unconstitutionally prejudice the accused’s ability to mount a defense.  Failing to appoint counsel promptly hinders opportunities for pretrial release.  Delaying the appointment of counsel prevents early investigation and evidence gathering.  Failing to appoint counsel promptly also delays critical counseling and negotiations. 

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

Argument: NACDL’s amicus brief argues that under the savings clause of 28 U.S.C. § 2255(e), a prisoner may seek habeas corpus relief through 28 U.S.C. § 2241 under limited circumstances: when the § 2255 remedy is “inadequate or ineffective to test the legality of [the prisoner’s] detention.”  28 U.S.C. § 2255(e).  For 20 years, the Fifth Circuit has recognized that the § 2255 remedy is “inadequate or ineffective” if a petitioner cannot seek relief despite a retroactively applicable Supreme Court decision establishing that the petitioner may have been convicted of a nonexistent crime.  Although that test leaves the door closed on some actual-innocence claims that should be recognized, it is generally consistent with the savings-clause tests applied in nearly every other federal court of appeals.  Most importantly, that test confirms that the savings clause offers more than a hollow process providing no practical opportunity to end unlawful imprisonment.  The Tenth and Eleventh Circuits, by contrast, have held that the savings clause applies only if the procedure afforded by § 2255 was formally unavailable.  According to those courts, so long as there was some theoretical chance to assert a claim under § 2255—even if the claim was futile or frivolous under existing precedent—the remedy was adequate and effective.  The Fifth Circuit should not modify or overrule its savings-clause jurisprudence to align itself with the Tenth and Eleventh Circuits.  The test applied in those circuits contravenes the text of the savings clause and congressional intent, poses constitutional concerns, and would force petitioners and their counsel to disregard binding precedent, court rules, and ethical obligations that forbid arguments that would be frivolous under settled law.  Moreover, application of the formal-process test would undermine public confidence in the justice system’s treatment of prisoners who contend that retroactive changes in the law mean they are actually innocent.

Brief Amicus Curiae of the National Association of Criminal Defense Lawyers In Support of Petitioner-Appellant.

Argument: NACDL’s amicus brief argues that consistent with Boumediene v. Bush, 553 U.S. 723 (2008), the D.C. Circuit has repeatedly recognized the possibility that the Due Process Clause applies, at least in some respects, to Guantanamo detainees.  To the extent the en banc court concludes that the Suspension Clause does not bar the use of ex parte evidence in habeas proceedings, it should hold that the Due Process Clause does bar such evidence.  Ex parte evidence is one of the core evils against which the Due Process Clause guards.  Since before the Founding, it has been recognized that fundamental fairness requires allowing a litigant to see, and rebut, the evidence the government is relying upon to justify the exercise of its coercive powers.  The D.C. Circuit has long recognized and enforced the firmly held rule that courts may not decide the merits of a case—particularly one where individual liberty interests are at stake—on the basis of ex parte, in camera submissions.  If the information required to hold a detainee is classified:  “The government must choose; either leave the transactions in the obscurity from which a trial will draw them, or it must expose them fully.”  Jencks v. United States, 353 U.S. 657, 671 (1957).  Two key due process considerations strongly favor barring ex parte evidence here: the risk of erroneous deprivation and the strength of the government’s asserted interest.  Al-Hela has been in detention for nearly 20 years without ever being charged with a crime.  The information at issue is aged and the government’s interest in maintaining secrecy of such dated information has diminished with the passage of time.  At the same time, the risk of a prolonged detention based on erroneous information increases with each passing day.  As a result, the degree of scrutiny of the evidence used to justify detention must increase as well, requiring, at a minimum, that Al-Hela’s security-cleared counsel be given an opportunity to review all of the evidence used to justify Al-Hela’s continued detention.  There is good reason to be wary of the ex parte use of information in this context, given that prior ex partesubmissions have proven unreliable when subsequently exposed to daylight.

Brief of Amicus Curiae National Association of Criminal Defense Lawyers.

Argument: The Fifth Amendment prohibits using Mr. Valdez’s refused passcode disclosure as evidence of guilt. It is settled law that the State cannot raise a criminal defendant’s silence as evidence of their guilt. The words of the Fifth Amendment’s privilege against compelled self-incrimination should be given their plain meaning. The Fourteenth Amendment’s history is useful guidance when considering an amendment’s curative purpose. The Fifth Amendment’s own language demonstrates the Self-Incrimination Clause’s only limitation is that it is reserved for criminal cases. The State’s search warrant authority does not override a defendant’s Fifth Amendment rights. 

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

Argument: The Double Jeopardy Clause allows successive prosecutions by different governments only if each of them exercises sovereignty in two different aspects. When a prosecution in a CFR court (Court of Indian Offences) is followed by a prosecution in federal district court, the federal government’s control over both proceedings establishes that the CFR court prosecution is merely a tool of the federal government.

Brief of the National Association of Criminal Defense Lawyers and Due Process Institute as Amici Curiae in Support of Petitioner (On Petition for a Writ of Certiorari). 

Argument: Without addressing the relevant text or history, the Eleventh Circuit held that, for purposes of the COA statute, a “proceeding under section 2255” extends beyond identifying a defect in custody—habeas’s historic outer limit—to also include the process of choosing an appropriate remedy. The court of appeals erred by reading the jurisdictional limits in the Antiterror-ism and Effective Death Penalty Act (“AEDPA”) in isolation from—rather than in pari materia with—the jurisdictional grants that they were enacted to restrain. Read together, sections 2255 and 2253 communicate Congress’s unambiguous intent that a “proceeding under section 2255” has the same scope as a traditional proceeding for habeas corpus. This Court’s habeas precedents, in turn, make clear that the scope of that proceeding does not include selecting a remedy. review is warranted because requiring a Certificate of Appealability prior to appellate review of a choice of remedy under § 2255(b) would be the functional equivalent of abolishing review altogether. COAs are available only for constitutional claims, but the choice of post-conviction remedy is an almost purely statutory procedure, and, as a practical matter, no COA could ever issue to a defendant in petitioner’s position. This Court’s review is needed to resolve that split and correct the Eleventh Circuit’s misinterpretation of the statutes governing federal post-conviction review.

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

Argument: Trial judges must consider a defendant’s post-sentencing conduct and intervening legal developments when exercising their Section 404 authority to “Impose A Reduced Sentence.” Evidence of post-sentencing conduct and intervening changes in law significantly affects district courts’ exercise of Section 404 sentencing discretion—producing fairer and more appropriate sentences. The text and statutory context of the First Step Act compel consideration of post-sentencing conduct and intervening legal developments.