Brief for Amicus Curiae National Association of Criminal Defense Lawyers in Support of Petitioner (on Petition for Writ of Certiorari).
Argument: The Court should grant certiorari to confirm that instructional error as to a contested element is never harmless. The Constitution prohibits judges from directing a verdict on a contested element of a criminal offense. The circuits are split over whether overwhelming evidence can render harmless the omission of a contested element, and the issue is a recurring one. This case presents an ideal vehicle to resolve the lower court confusion over the harmless error test applicable to instructional errors.