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).

By the Coalition to Preserve the Attorney-Client Privilege: While the new Justice Department policy is a welcome and important improvement over its previous policy outlined in the McNulty Memorandum, a comprehensive solution to the ever-widening problem of government-coerced waiver is still critically needed. Therefore, the Coalition strongly supports the adoption of a Presidential Executive Order to all federal agencies requiring them to adopt effective DOJ-type reforms or the enactment of comprehensive federal legislation like the Attorney-Client Privilege Protection Act (ACPPA).

Report of Task Force on Attorney-Client Privilege, New York State Bar Association, March 27, 2006.

Comments to the U.S. Sentencing Commission from the Coalition to Preserve Attorney-Client Privilege regarding proposed amendments to the sentencing guidelines.

“No Retreat Now – The long fight to protect the attorney-client relationship against aggressive prosecutors can only end with legislation,” by Brian W. Walsh and Stephanie A. Martz, Legal Times, September 1, 2008.

The Coalition to Preserve the Attorney-Client Privilege issued this statement on the Senate Judiciary Committee confirmation proceedings scheduled for January 15, 2009 on the nomination of Eric H. Holder Jr., to be Attorney General of the United States.

American Bar Association, Talking Points in Support of the Attorney-Client Privilege Protection Act of 2007, July 2009.

On December 12, 2006, U.S. Deputy Attorney General Paul J. McNulty announced that he was releasing revised corporate charging guidelines for federal prosecutors throughout the country. The memorandum comes on the heels of a period in which federal prosecutors have enjoyed unprecedented success in combating corporate fraud, resulting in increased corporate self-policing and accountability.

McNulty Memorandum Press Release, December 12, 2006 - U.S. Deputy Attorney General Paul J. McNulty announced today during a speech at a meeting of the Lawyers for Civil Justice in New York that the Department of Justice is revising its corporate charging guidelines for federal prosecutors throughout the country.