The National Association of Criminal Defense Lawyers’ Memorandum of Law Amicus Curiae in Support of Defendants.

Argument: A government’s exercise of its contracting authority is not a cognizable form of “money or property” under the federal mail, wire, or program fraud statutes charged. NACDL expressed its interest in maintaining the necessary limits on the federal fraud statutes that the Supreme Court has imposed time and again. Reducing and resisting overcriminalization is a core issue for NACDL, and this case presents an issue squarely within that mandate.

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

Argument: Records needed for adversarial testing of witness testimony are particularly important in child abuse cases. In camera review preserves defendants’ constitutional rights and the interests of privilege holders. 

Brief Of Amici Curiae American Civil Liberties Union, Bronx Defenders, Cato Institute, Center for Appellate Litigation, Center on The Administration of Criminal Law at New York University School Of Law, Legal Aid Society, National Association of Criminal Defense Lawyers, National Police Accountability Project, New York Civil Liberties Union, New York State Chief Defenders Association, New York State Association of Criminal Defense Lawyers, and Office of the Appellate Defender Supporting Reversal.

Argument: Evidence fabrication is a serious and pervasive problem, and its innocent victims often do not obtain an “indication of innocence.” Requiring indicia of innocence for civil rights claims of evidence fabrication is unfair and unworkable. McDonough does not affect the substantive difference between malicious prosecution claims and fabrication claims, which address corruption of the criminal process regardless of probable cause. The District Courts’ rule would be unjust, unfair, and unworkable. The District Courts’ rule undermines the core accountability function of § 1983 in cases of very serious misconduct. The District Court’s rule would harmfully exacerbate the existing power imbalance against criminal defendants. The District Courts’ rule is not administrable and will yield arbitrary results.

Brief Of Amici Curiae The Tennessee Innocence Project, National Association of Criminal Defense Lawyers, and Tennessee Association of Criminal Defense Lawyers in Support of Petitioner.

Argument: Investigation of the prosecution’s scientific or technical evidence on critical facts essential to the defense is a necessary part of rendering constitutionally adequate counsel. Counsel’s investigation of forensic sciences and techniques related to a fact essential to a defense is critical because of the powerful impact expert testimony has at trial. The National Research Council of the National Academy of Science’s report on the forensic science community highlights the shortcomings of the field as well as the powerful impact that faulty forensic science can have on those accused of a crime. Extensive research has shown a positive correlation between faulty forensic science testimony and the wrongful conviction of those accused of a crime. The United States Supreme Court’s analysis of defense counsel’s responsibilities to investigate and obtain expert assistance in Hinton v. Alabama directly applies to this case. Trial counsel’s failure to introduce Inspector Miller’s statements through the excited-utterance exception is the kind of unforced error that the Supreme Court recognizes as constitutionally inadequate. 

Brief Of Amici Curiae American Civil Liberties Union, Bronx Defenders, Cato Institute, Center for Appellate Litigation, Center on The Administration of Criminal Law at New York University School Of Law, Legal Aid Society, National Association of Criminal Defense Lawyers, National Police Accountability Project, New York Civil Liberties Union, New York State Chief Defenders Association, New York State Association of Criminal Defense Lawyers, and Office of the Appellate Defender Supporting Reversal.

Argument: Evidence fabrication is a serious and pervasive problem, and its innocent victims often do not obtain an “indication of innocence.” Requiring indicia of innocence for civil rights claims of evidence fabrication is unfair and unworkable. McDonough does not affect the substantive difference between malicious prosecution claims and fabrication claims, which address corruption of the criminal process regardless of probable cause. The District Courts’ rule would be unjust, unfair, and unworkable. The District Courts’ rule undermines the core accountability function of § 1983 in cases of very serious misconduct. The District Court’s rule would harmfully exacerbate the existing power imbalance against criminal defendants. The District Courts’ rule is not administrable and will yield arbitrary results.

Brief of National Association of Criminal Defense Lawyers as Amici Curiae in Support of Appellant and Reversal.

Argument: The Sixth Amendment requires trial counsel to investigate mitigating factors in a death penalty case. The duty to investigate mitigating factors extends to investigating evidence of trauma and abuse. The duty to investigate abuse and trauma was well established when Terry was sentenced to death in 1997. The duty to ensure a constitutionally adequate social history investigation lies squarely with trial counsel. Trial counsel does not fulfill their Sixth Amendment obligations merely by hiring experts. Trial counsel is required to actively oversee the mitigation investigation. The decision below departs from that precedent. The district court erred in finding that trial counsel conducted an adequate investigation. The district court erred in attributing trial counsel’s errors to Terry’s experts. 

Brief of National Association of Criminal Defense Lawyers (NACDL) as Amicus Curiae in Support of Petitioner-Appellant.

Argument: Walters’ counsel’s utter failure to communicate constructively denied him counsel so prejudice should be presumed. Alternatively, Mr. Walters established prejudice under Strickland and Frye resulting from his counsel’s pervasive neglect. There is a reasonable probability that the favorable March plea offer would have been accepted and entered if counsel had communicated with Mr. Walters. If Mr. Stanley’s deficient performance is instead viewed as a series of separate errors, Strickland compels a cumulative consideration of prejudice.

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

Argument: If this Court were to hold that an offense with a mens rea of recklessness qualifies as a “violent felony” under the Armed Career Criminal Act (“ACCA”), 18 U.S.C. § 924(e), it would expand the reach of ACCA’s severe sentencing consequences to defendants whose predicate offenses bear little, if any, resemblance to the knowing and purposeful acts of violence Congress intended to target. Such a broad application of ACCA is wrong as a matter of law, and it would result in unjust and disproportionate sentences for defendants nationwide. ACCA’s force clause does not reach reckless offenses. The text of ACCA’s force clause, like the clause at issue in Leocal and unlike the clause in Voisine, does not cover reckless offenses. Excluding reckless offenses comports with ACCA’s purpose, in contrast to the gun-control provision in Voisine. ACCA should not apply to reckless offenses absent a clear indication from congress. The court has at least as much reason to apply lenity here as it did in Leocal. Application of the rule of lenity here would avoid the pernicious effects of a broad reading of ACCA.

Brief Amicus Curiae The National Association of Criminal Defense Lawyers in Support of Petitioner (in support of petition for writ of certiorari).

Argument: Cross-examination ensures the integrity of the adversarial process. The appointment of standby counsel is the most appropriate means to solve the problems that this court has acknowledged with pro se representation in criminal courtrooms. 

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

Argument: Kenneth Robinson’s case is a quintessential example of why people plead guilty under the threat of a trial tax. Kenneth withstood the immense pressure to plead guilty. A child of only fifteen, charged with murder under the “hand of one, hand of all” doctrine, he exercised his right to a jury trial, foregoing a twenty-three-year offer to plea to manslaughter. He refused to relinquish his right to appeal, foregoing a thirty-year plea offer following guilty verdicts at trial. He paid the price. Most defendants plead guilty to avoid the trial tax; Kenneth went to trial, and the trial tax was levied against him in the form of a fifty-year sentence. By contrast, Kenneth’s co-defendants pleaded guilty and received significantly shorter sentences. NACDL is uniquely positioned to observe the criminal justice system. Over time, based on empirical data and the experiences of its members, NACDL has developed an understanding of the trial tax—the reality that individuals who choose to exercise their Sixth Amendment right to trial face exponentially higher sentences if they invoke the right to trial and lose. It is NACDL’s position that the trial tax is antithetical to the American concept of justice because it diminishes jury trials, undermines the legal system’s goal of truth-seeking, relieves the government of its burden of proof, contributes to wrongful convictions, and disproportionately hurts young people. Kenneth Robinson’s case in particular starkly reveals the dangers to a defendant who chooses to exercise his constitutional right to trial.

Brief for National Association of Criminal Defense Lawyers as Amicus Curiae in Support of Petitioners (in support of petition for writ of certiorari).

Argument: The Second Circuit’s interpretations of “property” and “thing of value” violate this Court’s precedents. Deeming regulatory information “confidential” does not give the government a property interest in that information. Confidential information about regulatory plans is not “a thing of value” under Section 641. The Second Circuit’s interpretations of “property” and “thing of value” criminalize core First Amendment activity.

Brief for Amicus Curiae National Association of Criminal Defense Lawyers (“NACDL”) in Support of Defendants-Appellants.

Argument: The District Court impermissibly directed a verdict on the existence of an official act. The jury decides whether the defendant is guilty of each contested element of the charged offense. The District Court usurped the jury’s exclusive role. Under Gaudin and McDonnell the question of whether alleged conduct constitutes an official act is a mixed question of law and fact reserved for the jury. Neither Fattah Nor Hastie justify a directed verdict on the official act element. That different juries may reach different verdicts based on similar facts is inherent in the jury system—it is not a basis to abrogate the jury’s right to render a verdict. The District Court’s error if uncorrected will impact other criminal defendants. The District Court’s error warrant a new trial. A directed verdict for the government on a disputed element can never be harmless. The improper directed verdict on the official act element also negates the convictions on the Section 666 charge.

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 Of Amicus Curiae National Association Of Criminal Defense Lawyers in Support of Petition for Writ of Certiorari.

Argument: Broad forfeiture rules chill vital defense arguments. Broad forfeiture rules force defendants into a Hobson’s choice between constitutional rights. Broad forfeiture rules undermine the institution of the criminal trial. NACDL submits this brief in support of the petition for certiorari because the issue presented in this case—whether a criminal defendant who “opens the door” to responsive evidence also forfeits the right to exclude evidence otherwise barred by the Confrontation Clause—is of paramount importance to criminal defense attorneys throughout the country and the clients they represent. 

Brief of Amicus Curiae the National Association of Criminal Defense Lawyers in Support of Petitioner’s Objections to Magistrate Judge’s Order.

Argument: Investigations by telephone, rather than in-person, deprive Brown of effective assistance of counsel. Defense counsel’s ability in a death penalty case to effectively represent the client is derived from “the overarching duty to advocate the defendant’s cause.” This duty is even more critical in capital cases, since “‘the penalty of death is qualitatively different’ from any other sentence.” As such, capital cases require a “greater degree of reliability when the death sentence is imposed.” However, reliability is only attainable when defense counsel is able to adequately investigate and prepare, which is fundamental to attorney competence. Inhibiting defense counsel’s ability to investigate renders counsel ineffective and harms the client. In fact, several courts have found defense counsel constitutionally ineffective for failing to conduct an in-person investigation. The Magistrate’s Order asks counsel to ignore ethical obligations under standards governing capital cases. A mitigation investigation in a capital case must not deviate from the American Bar Association Guidelines for the Appointment and Performance of Council in Death Penalty Cases and the Supplementary Guidelines for the Mitigation Function of Defense Teams in Death Penalty Cases. Capital life sentence investigations must be conducted according to well-established best practices. The ABA Guidelines, the Supplementary Guidelines, and Texas Guidelines articulate the national and state standards regarding the investigation obligations of defense teams in such cases.