S261827 (Cal. Sup. Ct.)

NACDL, et al., filed a Petition for Writ of Mandate Seeking the Immediate and Significant Reduction of County Jail and Juvenile Facility Populations Across the State of California. As explained in the petition, the conditions in these facilities constitute violations of the U.S. Constitution’s Eighth Amendment prohibition on cruel and unusual punishment as well as violations of individuals’ Due Process rights under the Fourteenth Amendment, in addition to violations of the California Constitution and other state and federal laws.

Letter to Attorney General Merrick Garland regarding former Attorney General William Barr's ruling in Matter of Thomas and Matter of Thompson, 27 I. & N. Dec. 674 (AG 2019) changing DOJ and DHS policy so state courts can only affect immigration sentencing if related to underlying criminal proceedings and not the immigration case.

Brief Amicus Curiae of the National Association of Criminal Defense Lawyers In Support of Petitioner-Appellant.

Argument: NACDL’s amicus brief argues that consistent with Boumediene v. Bush, 553 U.S. 723 (2008), the D.C. Circuit has repeatedly recognized the possibility that the Due Process Clause applies, at least in some respects, to Guantanamo detainees.  To the extent the en banc court concludes that the Suspension Clause does not bar the use of ex parte evidence in habeas proceedings, it should hold that the Due Process Clause does bar such evidence.  Ex parte evidence is one of the core evils against which the Due Process Clause guards.  Since before the Founding, it has been recognized that fundamental fairness requires allowing a litigant to see, and rebut, the evidence the government is relying upon to justify the exercise of its coercive powers.  The D.C. Circuit has long recognized and enforced the firmly held rule that courts may not decide the merits of a case—particularly one where individual liberty interests are at stake—on the basis of ex parte, in camera submissions.  If the information required to hold a detainee is classified:  “The government must choose; either leave the transactions in the obscurity from which a trial will draw them, or it must expose them fully.”  Jencks v. United States, 353 U.S. 657, 671 (1957).  Two key due process considerations strongly favor barring ex parte evidence here: the risk of erroneous deprivation and the strength of the government’s asserted interest.  Al-Hela has been in detention for nearly 20 years without ever being charged with a crime.  The information at issue is aged and the government’s interest in maintaining secrecy of such dated information has diminished with the passage of time.  At the same time, the risk of a prolonged detention based on erroneous information increases with each passing day.  As a result, the degree of scrutiny of the evidence used to justify detention must increase as well, requiring, at a minimum, that Al-Hela’s security-cleared counsel be given an opportunity to review all of the evidence used to justify Al-Hela’s continued detention.  There is good reason to be wary of the ex parte use of information in this context, given that prior ex partesubmissions have proven unreliable when subsequently exposed to daylight.

Written Statement of Norman L. Reimer, Executive Director National Association of Criminal Defense Lawyers Before the House Committee on the Judiciary Over-Criminalization Task Force Re: “Mens Rea: The Need for a Meaningful Intent Requirement in Federal Criminal Law”

U.S. District Court Judge Emmet G. Sullivan’s letter to the Judicial Conference Advisory Committee on the Rules of Criminal Procedure, regarding federal disclosure obligations and suggesting an amendment to the Federal Rules of Criminal Procedure.

Coalition letter to Governor Greg Abbott, of Texas, regarding his executive order (GA-13) refusing to allow release of inmates from state detention facilities during the COVID-19 pandemic.

NACDL President Nina J. Ginsberg's written statement to the Washington, D.C. City Council Judiciary and Public Safety Committee regarding proposed legislation to prohibit "panic" defenses in criminal cases.

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.

The Due Process Protections Act of 2020 amends the Federal Rule of Criminal Procedure to require federal district judges to enter an order in each case confirming prosecutors' obligation to disclose evidence exculpatory to the defense under Brady v. Maryland, 373 U.S. 83 (1963) and its progeny, and setting forth consequences for failing to do so. In response to this new law, NACDL's Discovery Reform Task Force drafted and promulgated a Model Standing Discovery Order Pursuant to the Due Process Protections Act.

Coalition letter to House leadership and the House Judiciary Committee regarding the proposal for judges to reaffirm the requirement to disclose exculpatory evidence as presented in the Due Process Protections Act (S. 1380, 2020), as already passed by the Senate.

In The Circuit Court of Cook County, Illinois County Department, Criminal Division: People of the State of Illinois v. Church, Chase & Betterly

Memorandum of Law in Support of Joint Motion to Dismiss The Consitutionally Vague Terrorism Charges in The Indictment

Argument: DEFENDANTS’ JOINT MOTION TO DISMISS COUNTS ONE, TWO, THREE, AND SIX OF THE ABOVE ENTITLED INDICTMENT WHICH ARE BASED UPON THE UNCONSTITUTIONALLY VAGUE STATUTORY DEFINITION OF “TERRORISM” AND “TERRORIST ACT” 

Brief of National Association of Criminal Defense Lawyers as Amicus Curiae in Support of Appellant Randell G. Shelton, Jr., Reversal, and Remand.

Argument: This case involves an important question of criminal law: Under the Due Process Clause of the United States Constitution, what is the appropriate remedy when a government agent acts in shocking bad faith, intentionally “wiping” his government-issued, undercover laptop computer instead of delivering it for a forensic evaluation as instructed? The Court below found that the agent acted in bad faith and violated Appellant’s due process rights, but nevertheless fashioned a remedy short of dismissal. The remedy given by the Court wasn’t nearly sufficient to (a) satisfy the defendant’s right to seek and discover potentially exculpatory evidence; (b) punish the government for wrongful conduct in this case, or (c) deter wrongful conduct in future cases by similarly situated government agents or entities. This issue strikes at the heart of the due process guarantee and the fairness of the justice system. Dismissal is the only remedy that will appropriately redress the government’s acts of bad faith and violations of Appellant’s due process rights.

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

Argument: The question presented is of great importance to criminal defendants. The ability to present evidence in one’s defense is a fundamental right accorded to criminal defendants by the Constitution. It is not merely a means of ensuring that trials are generally fair; rather, it stands alongside the right to confront witnesses and the right to counsel of one’s choosing as essential elements of a fair trial, the violation of which is necessarily unconstitutional. The defense’s ability to present favorable evidence is critical to our adversarial system.  The question presented by this petition arises in a diverse range of circumstances during criminal proceedings and is frequently recurring, warranting the courts attention.