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.

Amicus curiae brief of the National Association of Criminal Defense Lawyers in support of the petition for certiorari and urging reversal.

Argument: “Harmless error” review must assess the effect of the error on the verdict, upon review of the entire record, and with the burden of proving harmlessness on the government ; the appellate court must assess the strength of the evidence with due consideration of the defendant’s Sixth Amendment jury trial right and the jury’s role as the factfinder.

Amicus curiae brief of the Missouri Association of Criminal Defense Lawyers and the National Association of Criminal Defense Lawyers.

Argument: After the trial court erroneously admitted evidence (firearm, ammunition and marijuana) seized in violation of the Fourth Amendment, the defendant admitted under oath that the gun and marijuana were his. The court of appeals held that while the trial court clearly erred in denying Norfolk’s motion to suppress, given the defendant’s confession in open court, the error was harmless beyond a reasonable doubt. When evidence is erroneously admitted at trial, the defendant’s subsequent testimony cannot render that error harmless; Missouri’s harmless error rule regarding subsequent testimony has been overruled by the U.S. Supreme Court and makes little practical sense.