"Plea Bargained vs. Open Pleas: What the Data Reveal," Westlaw Journal White Collar Crime, March 2017.

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

Argument: Courts are improperly positioned to assess whether the decision to go to trial is rational. Rejecting a plea bargain is rational because it might lead to more favorable outcomes. The decision to invoke his right to trial grants a noncitizen defendant the chance to avoid deportation, and that chance in itself makes declining a plea bargain rational. "Funny things happen" at trial. Presuming that defense counsel will use strategy as a guise for incompetence offends the ethical standards defense attorneys are bound to uphold.

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

Argument: NACDL supports the petition in this case because the Sixth Circuit's position (and that of the Second, Fourth, and Fifth Circuits) reflects a fundamental misunderstanding of the role of appellate courts and would permit them to impermissibly speculate as to what choices criminal defendants might make had they been properly advised by their counsel with respect to deportation risks. Judicial reasoning about whether a defendant would have chosen to take his case to trial improperly usurps the defendant's fundamental right to a jury of his peers. The importance of the question presented in this case is highlighted by three additional arguments. First, the Sixth Circuit's reasoning constitutes improper appellate intrusion into an area in which appellate courts have no business; namely, a defendant's decision whether or not to invoke the right to trial. The exercise of that right cannot be subject to a priori tests for rationality. Even if courts could impose such a test, the nature of our adversarial system makes rational assessment impossible. Second, our collective experience of "can't win" cases amply demonstrates that such cases can indeed be won based upon much more than "whimsy," "caprice," or "nullification." Finally, the Sixth Circuit's reasoning rests on a shop-worn claim that the result is necessary because otherwise defense counsel may act in bad faith. The Court should not countenance any such assumption that members of the bar and officers of the court would act contrary to their ethical duties.

National Association of Criminal Defense Lawyers adopted Ethics Opinion 12-02