Brief of the National Association Of Criminal Defense Lawyers and Delegate Patrick A. Hope as Amici Curiae in Support of Petition for Appeal.

Argument: The Circuit Court Violated Virginia law and due process by allowing the Commonwealth to expert-shop and admitting only its second, illegally obtained expert opinion. The Circuit Court violated Virginia law and due process by arbitrarily precluding Mr. Baughman from presenting testimony by Dr. Gravers and Dr. Krueger in his defense at trial.

Brief for the National Association of Criminal Defense Lawyers in Support of Petitioner (on petition for a writ of certiorari).

Argument: The Maryland Court of Appeals’ decision is the first and only to hold that trial counsel’s failure to investigate an unbiased and credible alibi witness is not prejudicial. Such an unforeseen decision will impact criminal defendants and, in particular, habeas petitioners, far beyond Maryland’s borders. Both state and federal courts across the country have found prejudice from trial counsel’s failure to call a credible, non-cumulative, and neutral, alibi witness. Those courts have found prejudice even when the government relies on evidence that the alibi witness may not rebut. The decision below calls into question this “clearly established” legal precedent, impairing the ability to remedy nationwide these unique and meritorious ineffective assistance of counsel claims.

Memorandum of National Association of Criminal Defense Lawyers and New York State Association of Criminal Defense Lawyers as Amici Curiae In Support of Defendant’s Motion to Dismiss the Indictment.

Argument: Public advocacy by the United States Attorney conflicts with the proper role of a federal prosecutor. Dismissal of the indictment, polling the grand jury, or conducting an evidentiary hearing are appropriate and lawful sanctions for inappropriate prosecutorial grandstanding. The word ‘alleged’ does not talismanically erase prejudice.

Brief of Amicus Curiae National Association of Criminal Defense Lawyers in Support of Respondent/Cross Petitioner’s Motion for Reconsideration

Argument: The majority opinion is out of step with other jurisdictions in the United States, which uniformly have found trial counsel’s failure to investigate and introduce testimony from a credible, neutral alibi witness to be prejudicial. By creating a split on an issue where the courts are otherwise uniform, the majority opinion risks cascading consequences for habeas claims around the nation.

Brief of the National Association of Criminal Defense Lawyers, National Association for Public Defense, Immigrant Defense Project, Immigrant Legal Resource Center, and National Immigration Project of the National Lawyers Guild as Amici Curiae in Support of the Petitioner-Appellant.

Argument: The lower court erred in holding that defense counsel need only advise noncitizen clients of possible deportation when deportation is in fact virtually certain. The lower court disregarded the holding of Padilla v. Kentucky. Counsel must give a strong warning of virtual certain deportation even if relief in immigration court is potentially available. Ample attorney resources make it easy to provide accurate advice of clear immigration consequences. Noncitizen defendants who fail to receive clear and accurate advice about the true likelihood of deportation can establish prejudice, notwithstanding notice of possible deportation. Because judicial warnings about immigration consequences of a plea differ categorically from advisals by defense counsel, they do not purge prejudice. Equivocal information about the risk of deportation does not cure prejudice when deportation is practically inevitable.

Brief of Amici Curiae California Attorneys for Criminal Justice, National Association of Criminal Defense Lawyers, and Mexican Capital Legal Assistance Program in Support of Petitioner-Appellee and Supporting Affirmance.

Argument: The District Court’s ruling that the California death penalty system cannot withstand scrutiny under the Constitution is correct. Delays in California’s review of death penalty judgments are attributable in significant part to the state’s failure to timely provide and protect the function of court-appointed counsel. The District Court’s analysis of the inadequacies of California’s implementation of the right to counsel throughout the state’s death penalty litigation process is well supported. Several characteristics of California’s death penalty litigation system contribute to the systemic delays. Systemic delays can cause prejudice.

Brief of Brooklyn Defender Services, The Legal Aid Society, The Bronx Defenders, Neighborhood Defender Service of Harlem, the National Association of Criminal Defense Lawyers, New York State Association of Criminal Defense Lawyers, and the Chief Defenders Association of New York as Amici Curiae in Support of Appellant.

Argument: There is substantial scholarly authority establishing that cross-racial identifications are less reliable and more prone to inaccuracy than other identifications. Failure to instruct the jury on the issue of cross-racial identification risks erroneous convictions due to Jurors' lack of awareness of the issue and potentially deprives defendants of their right to a fair trial. A defendant's right to call an expert on the issue of a cross-racial identification does not cure the prejudice resulting from the absence of a jury instruction. Cross-examination is an ineffective way to introduce pertinent information on own-race identification bias, and a rule requiring it to receive an instruction would almost certainly alienate jurors in the process. New York should implement a mandatory cross-racial jury instruction that reflects widely-accepted science.

Brief of Amici Curiae National Association of Criminal Defense Lawyers and the American Civil Liberties Union in Support of Respondent. 

Argument: The Fifth Amendment’s guarantee against self-incrimination applies at preliminary hearings. This principle is consistent with the Constitution’s text and with precedent. Limiting the Self-Incrimination Clause’s application to the criminal trial itself would severely prejudice defendants. The government’s policy concerns do not withstand scrutiny.

Brief of the National Association of Criminal Defense Lawyers as Amicus Curiae in Support of Petitioner (on petition for a writ of certiorari).

Argument: The Texas court’s prejudice ruling on the Brady violations disregards the realities of criminal trial practice. Sound criminal trial practice discourages exploratory cross-examination. Impeachment is critical to effective cross-examination. The Texas court’s ruling on the Caston Deal ignores sound trial practice. The Texas court’s ruling on the prior inconsistent statements is similarly flawed. The Texas court’s errors reflect broader confusion over how to analyze prejudice from Brady violations. The Texas court’s refusal to conduct cumulative error analysis ignores the real-world interactions among multiple errors. Multiple constitutional violations may combine to render a trial fundamentally unfair. Cumulative error analysis is imperative for Brady and Strickland violations.