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.

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. 

 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.

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

Argument: Taylor's categorical approach applies to all ACCA predicates. A prior conviction that lacks a mens rea element cannot constitute a "serious drug offense." ACCA's legislative history affirms that state drug convictions lacking a mens rea requirement do not qualify as "serious drug offenses." ACCA will continue to have a geographically disparate impact unless the categorical approach is applied. 

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. 

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.

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.

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.

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.

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 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.

The Amicus Curiae Committee provides 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. It operates according to these program protocols.

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.

Brief for Amicus Curiae National Association of Criminal Defense Lawyers (“NACDL”) in Support of Defendants-Appellants and Reversal

Argument: Confidential government information is not “property” for purposes of wire fraud and Title 18 securities fraud. Wire fraud and Title 18 securities fraud protect a victim’s property, not regulatory, rights. CMS does not have a property interest in information regarding a regulatory decision. Confidential government information is not a “thing of value” or “property” for purposes of Section 641. Congress has developed a measured, deliberate, and tailored regime for controlling government information. Expanding Section 641 to criminalize virtually any unauthorized disclosure of confidential information would vitiate Congress’s measured, deliberate, and tailored regime for controlling government information. The prosecution’s interpretation of “property” and “thing of value” criminalize core First Amendment activity.

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