Coalition letter to Congressional Judiciary Committees' leadership regarding a proposal to reopen the Department of Justice Office for Access to Justice, which it closed in 2018, to promote fairness and accessibility for all in the legal system. As proposed in the Office for Access to Justice Establishment Act of 2020 (S. 5060/H.R. 9018).

Brief for Amicus Curiae National Association of Criminal Defense Lawyers in Support of Appellant and Urging Reversal. 

Argument: Without disclosure of the underlying FISA materials, it is impossible to argue under Franks v. Delaware, 438 U.S. 154(1978), that the application contains material misstatements or omissions, and courts have no means of conducting the investigation necessary to make that determination themselves. Without disclosure, defendants cannot argue concretely that the government did not properly minimize the fruits of the surveillance, or that the government did not satisfy the requirement that it exhaust other, less intrusive investigative techniques before turning to FISA. Nor can defendants counter government arguments (typically presented ex parte under § 4 of the Classified Information Procedures Act (CIPA), 18 U.S.C. App. 3 § 4) that the fruits of particular surveillance techniques are too attenuated from the trial evidence to require disclosure. And without notice of particular surveillance techniques that the government used, a defendant cannot argue that, under the circumstances of the case, those techniques violate the Fourth Amendment or another constitutional or statutory protection. As appellant argues, Congress never intended FISA litigation to occur entirely ex parte. Courts have misinterpreted 50 U.S.C. § 1806(f), the statute's disclosure provision. And as we discuss below, the Fifth Amendment Due Process Clause for bids such a secret, one-sided process, under which defendants are routinely denied the information necessary to challenge the lawfulness of government surveillance. No other aspect of criminal law functions entirely in secret; search warrants and Title III wiretap orders are issued ex parte, but after indictment a defendant gets access to the warrant or order and supporting application and a full and fair opportunity to challenge both. It is past time for FISA litigation to meet the standard of fairness that is the hallmark of American law.

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

Argument: A Rule 59 motion is "part and parcel" of a habeas petitioner's "one full opportunity" to litigate a first federal habeas petition. The Fifth Circuit's rule leads to inefficient judicial administration of habeas petitions and unfair results for habeas petitioners. Rule 59 motions allow district courts to correct their own errors before judgment becomes final, thus avoiding unnecessary reversals and unfair results. Rule 59 motions also allow district courts to clarify their own orders even where they continue to deny relief, thus avoiding unnecessary remands. Eliminating Rule 59 motions would create additional burdens for the court of appeals. Recharacterizing Rule 59 motions as unauthorized second or successive petitions would deprive many petitioners of the opportunity to appeal in their first federal habeas proceedings.

Brief of Amici Curiae National Association of Criminal Defense Lawyers and Stanford Law School Justice Advocacy Project in Support of Petition for Rehearing En Banc.

Argument: Rehearing en banc is warranted because the application of Proposition 47 to federal anti-recidivism statutes is an important and recurring issue. Proposition 47 embodies the will of California voters to decrease both direct and indirect penalties for minor drug possession and to reduce prison populations. The concerns animating Proposition 47 also apply at the federal level. Rehearing en banc is warranted because the panel decision is incorrect and conflicts with circuit precedent.

Brief of Amicus Curiae National Association of Criminal Defense Lawyers in Support of Defendant David Newland.

Argument: Exceptions to statutes of limitations should be narrowly construed. The Wartime Suspension of Limitations Act (WSLA) should only apply to war frauds. The WSLA should only apply to pecuniary frauds. Fairness further requires narrow construction of WSLA. Strict construction of the 2008 act is needed because modern authorizations of the use of military force would otherwise allow an unintended indefinite suspension of statutes of limitations. Application of the WSLA would render the defense of withdrawal from a conspiracy a nullity.