Comments with FAMM to Deputy Attorney General Lisa Monaco regarding U.S. Attorney offices requiring waiver of the right to seek compassionate release during plea negotiations.

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

Argument: The criminal justice system is a system of plea negotiations that gives prosecutors enormous leverage over criminal defendants. Defendants face a higher sentence if they go to trial, which drives many defendants to take a plea bargain. This “trial penalty” means that some innocent defendants plead guilty. Defendants who plead guilty while maintaining their innocence should not be subject to a sanction of criminal contempt for doing so. Prosecutors may have wholly laudable reasons to dismiss cases even after a plea, and courts should not chill such actions with the threat of a contempt sanction.

"Plea Bargained vs. Open Pleas: What the Data Reveal," Westlaw Journal White Collar Crime, March 2017.

Brief of the National Association of Criminal Defense Lawyers as Amicus Curiae Supporting Appellant’s Petition for Rehearing En Banc.

Argument: This case thus presents a pure question of law: whether, absent an appearance before a magistrate, the Sixth Amendment right to counsel can ever attach prior to a formal charge. This question becomes ever more salient as pre-indictment plea negotiations become more common. Two panels of this Circuit have now complained of the injustice of a bright-line rule denying Sixth Amendment right to counsel protection pre-indictment.. The panel in United States v. Moody, 206 F.3d 609, 614-615 (6th Cir. 2000), felt bound by Supreme Court precedent; and the panel in the instant case felt bound by Moody. But Supreme Court precedent, properly understood in light of the text and purpose of the Sixth Amendment right to counsel, does not compel the Moody approach. Indeed, it suggests the different approach that the right is triggered whenever a prosecutor gets involved in substantive discussions of the case with defendant, either directly or through counsel. For this reason, this Court should grant en banc review, so that the Court may reconsider the panel decision and join the other Circuits which have ruled that, under the proper circumstances, the Sixth Amendment right to counsel can attach prior to formal charge—particularly where, as here, the prosecutor initiates pre-indictment plea negotiations.

National Association of Criminal Defense Lawyers adopted Ethics Opinion 12-02