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.

President Cynthia Hujar Orr's letter to Senate Homeland Security Committee leadership on overbroad, overcriminalized rules for beneficial ownership reporting proposed in the Incorporation Transparency and Law Enforcement Assistance Act (S. 569, 2009).

Immediate Past President and Legislative Committee Chair Gerald Lefcourt's statement to the American Bar Association Ethics 2000 Commission regarding proposed rule changes that address communications with people represented by counsel.

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

Argument: Courts are improperly positioned to assess whether the decision to go to trial is rational. Rejecting a plea bargain is rational because it might lead to more favorable outcomes. The decision to invoke his right to trial grants a noncitizen defendant the chance to avoid deportation, and that chance in itself makes declining a plea bargain rational. "Funny things happen" at trial. Presuming that defense counsel will use strategy as a guise for incompetence offends the ethical standards defense attorneys are bound to uphold.

Brief of Amici Curiae New York State Defenders Association, New York State Association of Criminal Defense Lawyers, National Association for Public Defense, National Association of Criminal Defense Lawyers, the Bronx Defenders, Brooklyn Defender Services, and New York Criminal Bar Association in Support of Plaintiffs-Appellants.

Argument: The District Court’s ruling minimizes and overlooks the Sixth Amendment’s guarantee of open and uninhibited attorney-client communications. The decision overlooks the critical pre-arraignment consultation between attorney and client. Adequate representation in arraignments requires an attorney to build trust with his client within minutes of their first meeting. The advice provided during pre-arraignment consultation informs decisions with far-reaching consequences. The decisions disregards how the presence of video cameras in attorney-client consultation booths prevents free and open communication in violation of attorney’s ethical obligations, the Sixth Amendment and the 1999 Settlement Order. The decision ignores the legitimate fears of attorneys and their clients that the recordings may be abused. The decision gives inadequate justification for the presence of video cameras in attorney-client consultation booths.