Brief of Amici Curiae National Association of Criminal Defense Lawyers, California Attorneys for Criminal Justice, and California Appellate Defense Counsel in Support of Petition for Rehearing and Rehearing En Banc.

Argument: The Sixth Amendment constrains reviewing courts’ harmless error analysis. The majority creates an intra-circuit conflict by endorsing a harmless error analysis based on a hypothetical trial without the error and by crediting the prosecution’s evidence while ignoring its weaknesses. The majority disregards Supreme Court precedent and creates an intra-circuit split in the standards employed to evaluate whether an error was prejudicial.

Brief of Amici Curiae National Association of Criminal Defense Lawyers (NACDL) in Support of Petitioner Jason Derek Krause. 

Argument: When exculpatory evidence is first revealed after trial, a reviewing court’s prejudice analysis must include an assessment of how the defense strategy would have differed if the state had timely disclosed the information. The prosecutor has a duty to disclose exculpatory evidence. Exculpatory evidence can significantly impact trial strategy. Prejudice from belated discovery is evaluated in terms of its effect on defense preparation and strategy. Mr. Krause was harmed by the state’s failure to timely disclose the flaws in the forensic science.

Brief of Amici Curiae Immigrant Defense Project and National Association of Criminal Defense Lawyers in Support of Defendant-Appellee.

Argument: A non-citizen defendant suffers prejudice when defense counsel fails to advise of potential immigration consequences, even if the court notifies defendant that he or she “may” face immigration consequences. Judicial notifications cannot cure defense counsel’s foregone negotiations for an immigration-safe plea. The statutorily mandated language in Ohio, which states that the guilty plea “may” result in deportation, does not accurately advise a defendant whose deportation is virtually certain and mandatory. Judicial notifications given without regard to a defendant’s particular circumstances must be given little weight in the prejudice analysis. The roles and responsibilities of court and counsel are legally and practically distinct. Allowing court notifications to replace advice from defense counsel contradicts Padilla v. Kentucky, which placed the burden of giving the advice regarding immigration consequences squarely on defense counsel.