"Defending the White Collar Case: In & Out of Court"

LOCATION: Westin DC City Center Hotel, Washington, DC
DATES: October 23-26, 2019

Brief of Amici Curiae the Criminal Defense Attorneys of Michigan, National Association of Criminal Defense Lawyers, the National Association for Public Defense, and the Ohio Public Defender.

Argument: Imposing additional sanctions on previously-convicted criminal defendants by retroactive application of a new law or new reporting is contrary to due process and injects wide spread uncertainty into the plea bargaining process. Such practice makes it difficult if not impossible for defense counsel to advise clients consistently with their Sixth Amendment duties. When the rules that drastically increase the consequences of convictions are changed and applied, sometimes long after the plea bargain process is complete, the result is a fundamental unfairness with no redress.

Trials are diminishing at all levels. Guilty pleas are the foundation of the criminal justice system. Exhaustion and helplessness work to wear down criminal defendants throughout the pretrial process. Seeing packed courtrooms and hearing that the prosecutor “lost the file” – which requires the case to be adjourned until a later date – have a nontrivial effect on a defendant’s decision-making. Also, pleas are frequently sold to defendants as the best alternative to an intractable situation. What are the solutions?

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

Amicus curiae brief of the National Association of Criminal Defense Lawyers, Connecticut Criminal Defense Lawyers Association, and the American Civil Liberties Union Foundation.

Argument: A defendant who validly pleads guilty should be allowed to assert ineffective assistance of counsel in a case where counsel failed to communicate a more favorable plea offer; the trial court is the proper forum for crafting a remedy to ineffective assistance at the plea stage.

Brief of Amicus curiae of the National Association of Criminal Defense Lawyers, Legal Ethics Professors and Legal Ethics Practitioners In Support of Respondent.

Argument: Advisory Ethics Opinion E-435 does not conflict with controlling federal law. Federal statutes, regulations, and court rules recognize the lawyer conduct ethics rules of this state. Opinion E-435 correctly concludes that waiver of ineffective assistance claims at a guilty plea create a conflict of interest for the defense lawyer that the prosecutor cannot impose on a pleading defendant. Conclusion: “Kentucky Ethics Op. E-435 is a correct statement of the controlling ethical principles and does not conflict with any law. The governing of lawyer conduct is completely within the power of the State, and federal prosecutors are bound by the State’s ethics rules under 28 U.S.C. §530b. This ethics opinion governs the conduct of prosecutors and criminal defense attorneys who practice in the state courts of Kentucky as well in the federal courts in Kentucky. Therefore, the U.S. Attorney’s brief of United States in Support of Motion for Review of Ethics Opinion should be rejected and the ethics opinion as written should be affirmed.”

Amicus curiae brief of the National Association of Criminal Defense Lawyers in support of Respondent.

Argument: Judicial participation in plea negotiations disrupts and undermines the plea bargain process. Treating Rule 11(C) violations as inherently prejudicial does not disrupt the federal criminal justice system. Judicial participation should be treated as inherently prejudicial.

Brief of National Association of Criminal Defense Lawyers as Amicus Curiae.

Argument: The Constitution prohibits strict liability offenses except in the rarest of circumstances. Strict liability offenses are generally disfavored. This case is not the rare case. The expansion of strict liability crime stretches prosecutorial discretion to the breaking point. There has been an unwarranted expansion of federal criminal liability and, in particular, strict liability crimes. Expansion of federal criminal law especially in the area of strict liability crimes dangerously grants prosecutors too much discretion. This case is the poster child for prosecutorial overreach. Strict liability crimes distort the plea bargaining process.

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

Argument: Today’s justice system is a system of pleas, so disclosure of exculpatory information in plea bargaining is imperative. Plea bargaining dominates modern criminal justice. Empirical data shows that many innocent defendants plead guilty, often to avoid the risks trial poses. Due process requires that the government disclose exculpatory information before a defendant pleads guilty. The principles underlying Brady apply in all criminal cases, not just the minority of cases that end in a trial. Ruiz does not foreclose defendants’ constitutional right to exculpatory information during plea bargaining. Numerous other courts recognize the right to exculpatory information before pleading guilty. The right to exculpatory information in plea bargaining is a logical corollary of the right to effective assistance of counsel. The government’s counterarguments are unpersuasive. The Court should correct its course on this critical constitutional right.

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