Coalition letter to the Senate Judiciary Committee regarding a renewed proposal to ban judges from determining sentences influenced by conduct acquitted by a jury, as addressed in the Prohibiting Punishment of Acquitted Conduct Act of 2021 (S. 601).

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 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.

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.

Report of the Sex Offender Policy Task Force reflecting NACDL's policy on sex offender registries and other practices as adopted by the Board of Directors.

Report of the Sex Offender Policy Task Force reflecting NACDL's policy on sex offender registries and other practices as adopted by the Board of Directors.

Nearly a half million people, or approximately three percent of Florida's adults, pass through the state's misdemeanor courts each year. Most are found guilty. The average court appearance lasts as little as three minutes. [Released July 2011]

NACDL created The Commission to Reform the Federal Grand Jury, drawing on the expertise of a variety of professionals throughout the criminal justice system. Commissioners spent two years examining the need for changes in the grand jury process and produced a Federal Grand Jury Bill of Rights based on their findings. The ten reforms set forth in this Bill of Rights, largely echoing those proposed by the American Bar Association (ABA) more than 20 years ago, would restore balance to the grand jury process and better protect against unwarranted prosecutions. [Released May 2000]

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.

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.

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.

NACDL's model legislation for discovery in criminal cases

Equal Justice & the Grand Jury: Achieving Racial Fairness

Presented by: Angela J. Davis, Professor, American University Washington College of Law; Peter L. Davis, Assoc. Professor Emeritus, Touro College Law Center, Central Islip, NY; Ross H. Garber, Shipman & Goodwin, Hartford, CT; Tanya Clay House, Director of Public Policy, Lawyers' Committee for Civil Rights Under Law; and Darryl A. Stallworth, Esq., Oakland, CA, former Alameda County Deputy District Attorney

Due Process & the Grand Jury: Protecting Targets and Witnesses

Presented by Roger Fairfax, Professor, George Washington Univ. School of Law; Carol Elder Bruce, K&L Gates, Washington, DC; Niki Kuckes, Professor, Roger Williams University School of Law, Bristol, RI; Gerald B. Lefcourt, Esq., New York, NY; and Gina Simms, Ober | Kaler, Washington, DC

Statement of the Coalition to Preserve the Attorney-Client Privilege to the Senate Judiciary Committee regarding the attorney-client privilege following the McNulty Memorandum and the consideration of Attorney-Client Privilege Protection Act of 2007 (S. 186, H.R. 3013).