Brief of Amici Curiae National Association of Criminal Defense Lawyers and FAMM in Support of Defendant/Appellee’s Petition for Rehearing and/or Rehearing En Banc.

Argument: Appellee Raia’s Petition for Rehearing addresses the discretion of a district court to excuse the 30-day waiting period for compassionate release under the First Step Act, 18 U.S.C. §3582(c)(1)(A). On April 2, 2020, the Panel declined to remand this case under Federal Rule of Appellate Procedure 12.1, stating that remand would be “futile.” In so ruling, the Panel necessarily concluded that the 30-day waiting period cannot be excused or waived. That conclusion was inconsistent with both Supreme Court and Circuit precedent. The ruling creates inconsistency in the Circuit’s treatment of all claims-processing rules, and undermines courts’ equitable authority in a wide range of cases. The30-day waiting period is a nonjurisdictional claims-processing rule. Courts may excuse noncompliance with that rule absent an express prohibition on doing so. Remand is therefore not “futile.” The Panel’s sua sponte conclusion to the contrary was error. Rehearing should be granted to correct the Panel’s error and confirm that judges are empowered to address “extraordinary and compelling” circumstances even when they arise exigently. At a minimum, the Panel should grant rehearing and order full briefing on this important issue, which was neither decided below nor fully briefed on appeal.

American Bar Association letter filed with the U.S. Sentencing Commission on August 15, 2005 in connection with its decision to add the privilege waiver issue to the list of tentative priorities for the 2005-2006 Sentencing Guidelines amendment cycle.

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

Argument: There is a circuit split over whether an inmate may proceed under § 1983 where he expressly waives any challenge to the loss of good-time credits in order solely to advance claims arising from the other sanctions. The Court should resolve the split and decide the issue in a manner contrary to the Seventh Circuit’s substantive holding because (i) the current circuit split has significant, intolerable practical ramifications for prisoners and the lower courts and (ii) the Seventh Circuit’s decision conflicts with this Court’s Heck jurisprudence and with the Court’s precedents obligating respect for statutory text.

Amicus curiae brief of the National Association of Criminal Defense Lawyers and the American Civil Liberties Union in support of respondent Van Chester Thompkins.

Argument: Prior to a 2 ½ hour interrogation, Thompkins was read his Miranda rights and acknowledged that he understood them. Although he did not formally invoke his right to remain silent, he remained virtually silent throughout questioning until finally a detective testified that he asked Thompkins whether he had asked God to forgive him for “shooting that boy down,” and he answered “yes.” Brief argues that Thompkins effectively invoked his right to remain silent by remaining silent during the interrogation and that any “implied waiver” of that right must occur much more quickly than the purported waiver on these facts.

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

Argument: Asserting a valid mental-state defense does not waive Fifth Amendment Protections. The State’s per se waiver rule is contrary to the zealous protection of a defendant’s Fifth Amendment privilege. The State’s per se  waiver rule creates an intolerable choice between constitutional rights. The State’s per se waiver rule is unnecessary. Presenting evidence of voluntary intoxication does not waive Fifth Amendment protections. Kansas follow a majority of states in allowing the voluntary intoxication defense.

Brief for National Association of Criminal Defense Lawyers as Amicus Curiae in support of appellants and urging reversal.

Argument: The obligations to not use false testimony and to correct any such false testimony belongs to the prosecutor and cannot be waived. Even if the Due Process protection against false testimony may be waived, the indispensable function it serves requires that the waiver standard be substantially more demanding than the standard the trial court utilized below. The Superior Court misapplied this court’s holding in Bruce. Trial counsel did not know that Det. Had testified falsely. There was no tactical decision to permit the false testimony to go unchallenged.

Brief of Amici Curiae National Association of Criminal Defense Lawyers and California Attorneys for Criminal Justice in Support of Petitioner-Appellant.

Argument: California law allowing holdout jurors to be dismissed affects matters of exceptional importance, and this court should grant en banc review to ensure that the law was not misapplied. Holdout jurors play an essential role in the criminal justice process. California defendants are entitled to juries that can decide their cases independently and conscientiously. California defendants have a right to an appellate system that functions as the California Constitution and AEDPA intended. The panel's decision eliminates one of the few paths to federal review that AEDPA preserves for state-court defendants. The panel's treatment of appellate court factfinding is inconsistent with this court's prior practice.

Brief of Amici Curiae New York County Lawyers Association and National Association of Criminal Defense Lawyers; Urging Reversal.

Argument: Outgoing inmate legal mail should be held to the highest protective constitutional standard. Arizona's outgoing legal mail policy is overbroad. The Arizona Department of Corrections (ADC's) outgoing legal mail policy lacks procedural safeguards. The ADC policy does not legitimately further the interests of penal administration. The ADC outgoing legal mail policy functions as an automatic privilege waiver. Overbroad legal mail policies raise Eighth Amendment and due process concerns. ADC's outgoing legal mail policy is particularly likely to violate the rights of death row inmates. ADC's outgoing legal mail policy is particularly likely to violate the rights of pretrial detainees.

Brief of Amicus Curiae National Association of Criminal Defense Lawyers in Support of Appellant and Urging Reversal.

Argument: Plea agreement waivers prohibiting a defendant from seeking post-conviction relief from deprivation of the right to effective assistance of counsel should never be enforced. A defense attorney has an inherent and unwaivable conflict. Criminal defendants are entitled to conflict-free counsel. Prosecutors also violate rules of professional conduct when they insist on IAC waivers in pleas agreements. The majority of ethics authorities to consider this issue have ruled that defense attorneys are prohibited from advising clients to accept IAC waivers. Congress has required federal prosecutors to adhere to state ethics rules.

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

Argument: No waiver occurs when a criminal defendant is forced to sacrifice one important right to secure another. This Court has long refused to find waiver where a defendant is put to a Hobson’s choice. Jeffers indicates that sacrificing double jeopardy rights to avoid a prejudicial trial is an unfair Hobson’s choice. A defendant does not waive double jeopardy rights by choosing severance to avoid an unfair trial. Evidence of a prior felony is unduly prejudicial. Allowing prosecutors to re-litigate issues they lost is antithetical to the Double Jeopardy Clause. This Court should grant certiorari to confirm that a choice between either an unfair trial or waiving one’s right not to “be twice put in jeopardy of life or limb,” U.S. Const. amend. V, is no choice at all—much less a voluntary waiver.