Brief of the National Association of Criminal Defense Lawyers and American Civil Liberties Union Foundation as Amici Curiae In Support of Appellant

Argument: NACDL and the ACLU Foundation filed a joint amicus brief addressing how courts should implement during jury selection an informed understanding of implicit (or “unconscious”) racial bias.  In a case in which the defendant and his trial counsel are African American, the district court struck for cause a prospective juror who said race would “impact” her deliberations in that she would scrutinize her thinking for the effects of “inherent bias.”  While recognizing that jurors should examine their own thinking for the effects of unconscious bias, the court thought that examining witness testimony for its effects would be improper.  Believing the juror would do both, the judge granted the government’s for-cause challenge.  That ruling restricted a fundamental jury function:  weighing bias in assessing witness credibility.  Barring consideration of racial bias in particular threatens the accused’s rights to an impartial jury and fair trial.  The ruling also undermines public confidence in the criminal legal system and the rights of diverse jurors to serve as jurors.  
 
Mateo de la Torre of King & Spalding LLP was the volunteer author, with input from colleagues Jamie Dycus and Craig Carpenito.  Claudia Van Wyk, Staff Attorney at the ACLU’s Death Penalty Project, contributed substantial research and drafting.  Martín Sabelli and Lisa Mathewson were on the brief for NACDL.  Mr. Johnson is represented on appeal by Renee Pietropaolo of the Federal Public Defenders Office (W.D. Pa.).  The case is United States v. James Johnson, No. 22-2845 (3d Cir.).  
 

Brief of the Oregon Criminal Defense Lawyers Association and the National Association of Criminal Defense Lawyers as Amici Curiae in Support of Defendant-Respondent.

Argument: If OEC 609 is construed to permit all felony convictions without weighing the risk of unfair prejudice, the rule violates federal due process. The indiscriminate admission of even unfairly prejudicial convictions runs counter to common law traditions that require “fundamental fairness” and generally bar the use of propensity evidence.

Barring the use of OEC 403 prior to admitting felony convictions also burdens the exercise of Oregon defendants’ constitutional trial rights. First, it forces defendants to choose between the right to the right to testify and an impartial jury. Relatedly, the per se admission of prior felony convictions against defendants tends to produce a chilling effect on the right to testify because if they take the stand, they will be unfairly prejudiced. The Supreme Court has made clear, “[t]he right to testify on one’s own behalf at a criminal trial . . . is one of the rights that ‘are essential to due process of law in a fair adversary process.’” Rock v. Arkansas, 483 US 44, 51, 107 S Ct 2704, 97 L Ed 2d 37 (1987) (quoting Faretta v. California, 422 US 806, 817, n 15, 95 S Ct 2525, 45 L Ed 2d 562 (1975)). Second, the threat of per se prior conviction impeachment also impermissibly burdens the right to trial because it both distorts the strength of the government’s case and adds to the coercive nature of the plea-bargaining system of criminal adjudication.

Brief of Amicus Curiae National Association of Criminal Defense Lawyers in Favor of Appellee and in Support of Affirmance.

Argument: The district court correctly presumed prejudice from the jury’s exposure to extraneous, non-innocuous information. In accordance with Federal Rule of Evidence 606(b), the district court properly considered objective evidence in evaluating the extrinsic information’s subjective effect on jurors. In reviewing the district court’s decisions, this court should consider the entire record and should reject the government’s effort to evade exculpatory facts and to cast the evidence in the light most favorable to it.

Brief of Amici Curiae NAACP Legal Defense & Educational Fund, Inc., The National Association of Criminal Defense Lawyers, and the American Civil Liberties Union in Support of Petitioner.

Argument: The right to an impartial jury includes the right to a jury determination uncorrupted by racial prejudice. The Colorado Supreme Court misapprehended the constitutional import of racial prejudice in the jury system as a uniquely harmful and critical issue. Policy concerns underlying no-impeachment rules cannot override constitutional rights. Excluding explicit evidence of racial discrimination in juries would seriously undermine public confidence in the criminal justice system. Racial prejudice in the jury system damages individual proceedings, community perceptions, and democratic principles. A Court's refusal to consider whether a verdict is tainted by racial prejudice erodes public confidence.

Brief of the National Association of Criminal Defense Lawyers as Amicus Curiae in Support of Petitioner (on Petition for Writ of Certiorari).

Argument: Racial and ethnic bias in jury deliberations erodes public confidence in a criminal justice system already plagued by racial disparity. The admission of evidence showing juror bias during deliberations is necessary to protect the right to a fair trial.