Amicus Briefs Filed in 2018

The Amicus Curiae Committee’s mission is to provide amicus assistance on the federal and state level in those cases that present issues of importance to criminal defendants, criminal defense lawyers, and/or the criminal justice system as a whole. Membership in NACDL is not a prerequisite either for amicus assistance from the Committee, or for authorship of an NACDL amicus brief.


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Gutierrez v. Sessions

Brief of Amici Curiae Immigrant Defense Project, Detention Watch Network, Heartland Alliance’s National Immigrant Justice Center, Immigrant Legal Resource Center, National Association of Criminal Defense Lawyers, National Immigration Law Center, and National Immigration Project of the National Lawyers Guild in Support of Petitioner’s Petition for Rehearing and Rehearing En Banc.

Argument: Amici urge the Court to grant rehearing or rehearing en banc because the panel’s decision is at odds with Moncrieffe v. Holder, 569 U.S. 184 (2013). Amici agree with Ms. Gutierrez that when the record of a prior conviction under a divisible statute is ambiguous, the conviction should not bar eligibility for relief from removal. Amici submit this brief to raise three additional points. First, the panel’s decision unfairly bases relief eligibility on the happenstance of whether a prior criminal court creates or maintains the records necessary to disprove a disqualifying conviction. The noncitizen has no control over these criminal court practices but, under the panel’s decision, could face ineligibility for relief because of them. Second, the panel’s decision ignores that noncitizens—who are often without counsel and detained—face far greater impediments to obtaining and submitting the required conviction records than the Department of Homeland Security (DHS). Third, the panel’s decision has a broad impact: it operates to categorically bar relief for asylum seekers, victims of crime, and those—like Ms. Gutierrez—with longstanding residence and deep family ties in this country.

Hughes v. United States

Brief Amici Curiae of the National Association of Criminal Defense Lawyers and the National Association of Federal Defenders in Support of Petitioner.

Argument: The Freeman concurrence leads to unpredictable results because parties rely on the Sentencing Guidelines but do not draft plea agreements with retroactive resentencing in mind. The Sentencing Guidelines are key to all pleas because prosecutors must make them central to their decisions. Defendants use their limited plea leverage to address pressing, current issues. Defendants almost universally plead guilty. Defendants who plead prioritize current issues over uncertain future eventualities like retroactive Sentencing Guidelines. Rule 11(c)(1)(C) plea agreements differ by jurisdiction. Variations in plea agreements lead to different resentencing outcomes for similarly-situated defendants. The Freeman concurrence leads to inequitable results because eligibility for resentencing does not necessarily reflect the parties' actual intent. The Freeman concurrence leads to inconsistent results for defendants with similar plea agreements because there is confusion about the level of specificity required. Freeman should be modified to provide a clear, administrable rule. Justices have recognized the importance of clear, administrable rules rather than creating 4-1-4 split decisions. The proper rule is for all Rule 11(c)(1)(C) defendants to be resentenced when a guidelines range implicated by their plea is amended retroactively. Congress or the United States Sentencing Commission can always revise this rule if desired.

Lacaze v. Louisiana

Brief of Amici Curiae Louisiana Association of Criminal Defense Lawyers, National Association of Criminal Defense Lawyers, and 32 Other Associations of Criminal Defense Lawyers in Support of Petitioner (On Petition for a Writ of Certiorari to the Supreme Court of Louisiana).

Argument: This Court should resolve the inconsistent application of McDonough resulting from a well-established circuit split to ensure criminal defendants receive strong and uniform protections against juror bias. This Court has never clarified McDonough’s application in criminal cases. Courts applying the McDonough test for juror bias in the criminal context have largely ignored the constitutional divide between criminal and civil defendants. Courts’ application of McDonough ignores these nuances, resulting in disparate and inadequate protections for criminal defendants. The Louisiana Supreme Court wrongly deprived Mr. Lacaze of his Sixth Amendment right to an impartial jury. Against the backdrop of criminal juries’ remarkable power and unique responsibilities, McDonough requires that a new trial be granted when (1) a juror fails, intentionally or unintentionally, to answer honestly a material question on voir dire; and (2) the truthful answer provides a basis upon which a reasonable judge would have struck the juror for cause. In a system where criminal defendants face the most extreme penalties available under the law, allegations of jurors’ bias must be thoroughly scrutinized to ensure they are impartially carrying out their grave responsibility: to fairly and accurately assess an accused’s guilt or innocence.

McDonough v. Smith

Brief of Criminal Defense Organizations, Civil Rights Organizations, and the Cato Institute as Amici Curiae Supporting Petitioner (on petition for a writ of certiorari)

Argument: The decision below held that an individual must bring a claim for the unlawful fabrication of evidence under 42 U.S.C. § 1983 within three years of when that person “learned of the fabrication of the evidence and its use against him in criminal proceedings,” and “was deprived of a liberty interest by,” for example, an arrest or trial. McDonough v. Smith, 898 F.3d 259, 267 (2d Cir. 2018). For nearly all innocent defendants with valid claims, their claims would accrue immediately upon commencement of the proceedings—when they first learn the facts alleged at arraignment, they discern that some fact is fabricated, and bail is set. Consequently, to avoid the time bar, many criminal defendants will be forced to mount § 1983 suits either during a pending criminal trial or while still pursuing its appeal. That result directly conflicts with this Court’s decision in Heck v. Humphrey, 512 U.S. 477 (1994), which held that one of the elements an individual must plead and prove to win an evidence-fabrication claim is termination of the criminal proceeding in the accused’s favor. The decision below literally begins to run the statute of limitations on claims that courts are required, under Heck, to dismiss. It also conflicts with this Court’s broader pronouncements about the appropriate relationship between federal civil and state criminal litigation. This Court has consistently held that federal civil litigation must come after the conclusion of state criminal proceedings, both to respect the prerogative of states to adjudicate alleged violations of state law and to bolster the strong judicial policy against inconsistent adjudications in parallel proceedings. The decision below directly conflicts with this Court’s precedents governing the relationship between civil and criminal cases. The decision below is divorced from the realities of criminal litigation. Filing a § 1983 suit during a criminal trial prejudices a defendant’s criminal defense and a defendant’s § 1983 claim. The question presented is exceptionally important as evidence fabrication is a systemic problem, the decision below will functionally bar many meritorious evidence-fabrication claims, and, in many cases, an evidence-fabrication claims under § 1983 is the only effective form of redress.

Tennessee v. Decosimo

Brief of Amici Curiae National Association of Criminal Defense Lawyers and Tennessee Association of Criminal Defense Lawyers, Filed In Support of the Defendant/Appellee

Argument: The Court should apply strict scrutiny and hold that Tennessee Code Annotated section 55-10-413(f), which requires the payment of a $250 fee when the Tennessee Bureau of Investigation (“TBI”) provides expert proof to local law enforcement agencies in the form of a blood alcohol or drug concentration test. is unconstitutional on substantive due process grounds. That fee is assessed only when the expert proof provided by the TBI results in a conviction for certain crimes, including DUI. Applying strict scrutiny, this Court should find that section 55-10-413(f) is more restrictive than is necessary to achieve the State’s interest in funding the TBI’s forensic testing operation. Because section 55-10-413(f) encroaches upon the criminal defendant’s fundamental right to a fair trial, strict scrutiny is the applicable standard of review. Section 55-10-413(f) cannot withstand strict scrutiny because it is not narrowly tailored to serve the State’s interest in funding the forensic testing performed by the TBI. Even if strict scrutiny does not apply, none of the State’s arguments demonstrate that section 55-10-413(f) comports with due process principles. Partiality on the part of the TBI forensic scientists is not consistent with due process. The conviction-dependent, contingency-fee system in this case is different than the administrative system of assessing civil penalties at issue in Marshall v. Jerrico. The TBI’s pecuniary interest in obtaining criminal convictions is sufficient to sustain the due process claim. The Court of Criminal Appeals properly suppressed the forensic evidence without requiring a showing of actual bias.