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    • Brief

    United States v. Tsarnaev

    Brief of American Civil Liberties Union, American Civil Liberties Union of Massachusetts, Inc., National Association of Criminal Defense Lawyers, and the Rutherford Institute as Amici Curiae in Support of Respondent.


    Argument: NACDL’s amicus brief argues that in the sentencing phase of his capital trial, Dzhokhar Tsarnaev sought to introduce evidence in mitigation that his older brother Tamerlan Tsarnaev had previously enlisted an accomplice to commit a brutal triple murder and robbery on the ten-year anniversary of September 11, 2001. Tamerlan bound, beat, and slit the throats of three men (one a childhood friend) in the name of jihad.  This evidence supported Dzhokhar’s core mitigation theory that his older brother was a violent jihadist who influenced him to participate in the Boston Marathon bombings and was more culpable for those crimes. But the district court excluded it. Tamerlan’s previous jihadist murders and recruitment of an accomplice are powerful pieces of mitigation evidence, and 18 U.S.C. § 3593(c) provides no basis to exclude them. “Waste of time” is not a basis for exclusion under Section 3593(c). The proposed mitigation evidence created no danger of “confusing the issues.” Section 3595(a)’s harmless error standard is demanding, and the Government fails to meet it here. The Government fails to show beyond a reasonable doubt that the jury was just as likely to disbelieve Dzhokar’s core mitigation theory if it had seen the Waltham evidence.  The Government also fails to show beyond a reasonable doubt that the jury would have sentenced Dzhokhar to death even if it believed Dzhokhar acted under Tamerlan’s influence.

    • Brief

    Cody v. United States

    Brief of the National Association of Criminal Defense Lawyers and Due Process Institute as Amici Curiae in Support of Petitioner (On Petition for a Writ of Certiorari). 


    Argument: Without addressing the relevant text or history, the Eleventh Circuit held that, for purposes of the COA statute, a “proceeding under section 2255” extends beyond identifying a defect in custody—habeas’s historic outer limit—to also include the process of choosing an appropriate remedy. The court of appeals erred by reading the jurisdictional limits in the Antiterror-ism and Effective Death Penalty Act (“AEDPA”) in isolation from—rather than in pari materia with—the jurisdictional grants that they were enacted to restrain. Read together, sections 2255 and 2253 communicate Congress’s unambiguous intent that a “proceeding under section 2255” has the same scope as a traditional proceeding for habeas corpus. This Court’s habeas precedents, in turn, make clear that the scope of that proceeding does not include selecting a remedy. review is warranted because requiring a Certificate of Appealability prior to appellate review of a choice of remedy under § 2255(b) would be the functional equivalent of abolishing review altogether. COAs are available only for constitutional claims, but the choice of post-conviction remedy is an almost purely statutory procedure, and, as a practical matter, no COA could ever issue to a defendant in petitioner’s position. This Court’s review is needed to resolve that split and correct the Eleventh Circuit’s misinterpretation of the statutes governing federal post-conviction review.

    • Brief

    Caniglia v. Strom

    Brief Amicus Curiae of the National Association of Criminal Defense Lawyers and Criminal Procedure Professors in Support of Petitioner.


    Argument: In Sutterfield v. City of Milwaukee, 751 F.3d 542, 553 (7th Cir. 2014), the United States Court of Appeals for the Seventh Circuit observed that the distinctions among the exigent circumstances doctrine, the emergency aid doctrine, and the community caretaking doctrine “are not always clear.” In turn, these fuzzy distinctions have led to a “lack of clarity in judicial articulation and application of the three doctrines.” This lack of clarity means that courts deciding whether the community caretaking doctrine should apply to warrantless home entries often think that doctrine is needed to justify entries that are already covered by the exigent circumstances doctrine and/or the emergency aid doctrine. As set forth in this amici brief, this Court’s opinions defining and applying the exigent circumstances and emergency aid doctrines establish that police officers would need to rely on the community caretaking doctrine as an independent justification for warrantless home entries in only two potential situations: to address (1) non-bodily harms such as nuisances; and (2) non-imminent threats of bodily harm. Framed in that fashion, it is clear that a separate and independent rationale such as “community caretaking” – which was generated by the special circumstances attendant to automobile searches – does not justify invasion of the sanctity of the home. Indeed, the way that this Court distinguished its opinion in Coolidge in creating the community caretaking doctrine makes clear that the doctrine does not and should not apply to warrantless home entries. In addition, the capacity for a “community caretaking” exception that permits warrantless searches of the home would invite its use as an end run around the protections of the warrant requirement.