Brief of Amicus Curiae National Association of Criminal Defense Lawyers in Support of Petitioner (in support of petition for writ of certiorari).

Argument: Records needed for adversarial testing of witness testimony are particularly important in child abuse cases. In camera review preserves defendants’ constitutional rights and the interests of privilege holders. 

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

Argument: If this Court were to hold that an offense with a mens rea of recklessness qualifies as a “violent felony” under the Armed Career Criminal Act (“ACCA”), 18 U.S.C. § 924(e), it would expand the reach of ACCA’s severe sentencing consequences to defendants whose predicate offenses bear little, if any, resemblance to the knowing and purposeful acts of violence Congress intended to target. Such a broad application of ACCA is wrong as a matter of law, and it would result in unjust and disproportionate sentences for defendants nationwide. ACCA’s force clause does not reach reckless offenses. The text of ACCA’s force clause, like the clause at issue in Leocal and unlike the clause in Voisine, does not cover reckless offenses. Excluding reckless offenses comports with ACCA’s purpose, in contrast to the gun-control provision in Voisine. ACCA should not apply to reckless offenses absent a clear indication from congress. The court has at least as much reason to apply lenity here as it did in Leocal. Application of the rule of lenity here would avoid the pernicious effects of a broad reading of ACCA.

Brief Amicus Curiae The National Association of Criminal Defense Lawyers in Support of Petitioner (in support of petition for writ of certiorari).

Argument: Cross-examination ensures the integrity of the adversarial process. The appointment of standby counsel is the most appropriate means to solve the problems that this court has acknowledged with pro se representation in criminal courtrooms. 

Brief for National Association of Criminal Defense Lawyers as Amicus Curiae in Support of Petitioners (in support of petition for writ of certiorari).

Argument: The Second Circuit’s interpretations of “property” and “thing of value” violate this Court’s precedents. Deeming regulatory information “confidential” does not give the government a property interest in that information. Confidential information about regulatory plans is not “a thing of value” under Section 641. The Second Circuit’s interpretations of “property” and “thing of value” criminalize core First Amendment activity.

Brief Of The Cato Institute, FAMM Foundation, and National Association Of Criminal Defense Lawyers as Amici Curiae Supporting Petitioner (in support of petition for writ of certiorari).

Argument: The independence of citizen juries is a well-established and crucial feature of our legal and constitutional history. The District Court’s openness to permitting evidence and argument as to the consequences of a conviction is a reasonable exercise of the court’s discretion not subject to control by mandamus. The District Court’s provisional decisions thoughtfully harmonize different threads of modern case law, respecting the jury’s traditional authority to issue conscientious acquittals while still operating within the strictures of precedent. Permitting a jury to hear evidence about the consequences of conviction is especially reasonable in a case with a severe and surprising mandatory minimum. Protecting jury independence is all the more important given the vanishingly small role that jury trials play in our criminal justice system.

Brief Of Amicus Curiae National Association Of Criminal Defense Lawyers in Support of Petition for Writ of Certiorari.

Argument: Broad forfeiture rules chill vital defense arguments. Broad forfeiture rules force defendants into a Hobson’s choice between constitutional rights. Broad forfeiture rules undermine the institution of the criminal trial. NACDL submits this brief in support of the petition for certiorari because the issue presented in this case—whether a criminal defendant who “opens the door” to responsive evidence also forfeits the right to exclude evidence otherwise barred by the Confrontation Clause—is of paramount importance to criminal defense attorneys throughout the country and the clients they represent. 

Brief Of The Rutherford Institute And National Association Of Criminal Defense Lawyers As Amici Curiae In Support Of Petitioner.

Argument: If the Fourth Amendment does not apply here, then Ms. Torres will have no remedy at all. The Tenth Circuit’s ruling means that objectively un-reasonable police action that seriously injured the target of that action is not subject to Fourth Amendment scrutiny simply because the officer’s attempt to detain the target is initially unsuccessful. This approach is incorrect, not least because it would deprive plaintiffs like Ms. Torres of any remedy for serious injuries suffered at the hands of police officers. The decision below contradicts this Court’s jurisprudence. Furthermore, the Tenth Circuit’s approach is inconsistent with the way this Court has reviewed excessive-force cases in the past. Graham specifically held that “all claims that law enforcement officials have used excessive force—deadly or not—in the course of an arrest, investigatory stop, or other ‘seizure’ of a free citizen should be analyzed under the Fourth Amendment and its ‘reasonableness’ standard.” The Tenth Circuit’s ruling expands the unjustifiably significant disparity that already exists between liability for civilians and for police officers. This Court should recalibrate the balance in our society’s laws—more respect for individual liberty, and less accommodation of police excessive force. 

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.

Brief Amicus Curiae of the National Association of Criminal Defense Lawyers in Support of Petitioner (On Petition for a Writ of Certiorari).

Argument: Martinez recognized that its equitable remedy is necessary to ensure that state post-conviction counsel adequately protects the Sixth Amendment right to counsel. The right to effective assistance of counsel is a bedrock principle in our criminal justice system. Martinez mandates federal judicial review of trial counsel ineffectiveness where state post-conviction counsel performed in a constitutionally deficient manner. The Fourth Circuit’s application of “Fair Presentation” principles eviscerates Martinez. Certiorari is warranted to provide clarity to lower courts and practitioners, and enforce this Court’s mandate in Martinez. Courts of Appeals are divided on how to apply Martinez. Lower courts and practitioners require guidance on how the Supreme Court interprets Martinez.

Brief of the National Association of Criminal Defense Lawyers as Amicus Curiae in Support of Petitioner (On Petition for a Writ of Certiorari).

Argument: In Honeycutt v. United States, the Supreme Court held that the government may not impose a forfeiture order against a criminal defendant on the basis of joint and several liability, overturning decades of precedent to the contrary. Before Honeycutt, many forfeiture orders were imposed on defendants based on their joint and several liability. When habeas relief is unavailable, these defendants should be able to obtain relief through an extraordinary writ, such as the writ of coram nobis or audita querela, for three reasons. First, these forfeiture orders were issued without lawful authority and therefore violate due process. Second, these forfeiture orders exceed what Congress has deemed permissible and therefore violate the Eighth Amendment. And third, allowing these forfeiture orders to stand in light of these due process and Eighth Amendment violations is not in the public interest.

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

Argument: First, there must be a specific reason not to apply the Eighth Amendment to the Constitution to servicemembers. As there is no issue of military importance that excludes servicemembers from the protections of the Eighth Amendment, rape of an adult cannot be an “offense punishable by death.” Under the Supreme Court’s interpretation of the Cruel and Unusual Punishment Clause of the Eighth Amendment, the crime of rape of an adult cannot be punishable by death. Petitioner has not met its burden to provide a military-specific exception for the application of the Eighth Amendment to servicemembers. Here, the Petitioner offers policy prescriptions and “national security” reasons which are insufficient to deprive a service-member of his or her constitutional rights. Further, canons of statutory interpretation require that Article 43 must be read to protect applicable constitutional rights. Specifically, sections in the same statutory scheme should be read in pari materia, or interpreted together. Article 43, at the time of Respondents’ alleged offenses, had no statute of limitations for crimes punishable by death, including rape, but established a five-year limitation otherwise; however, Article 55 prohibits cruel and unusual punishment, mirroring the Eighth Amendment. Applying Supreme Court precedent that precludes death as a punishment for rape of an adult, Article 43 read in conjunction with Article 55 requires that rape was subject to a five-year statute of limitations at the time of the alleged offenses. Lastly, civilian law must inform the interpretation of the UCMJ. The CAAF may not freely disregard Supreme Court precedent without a “legitimate military necessity or distinction.” Therefore, the CAAF’s decision to reverse Respondents’ convictions should be affirmed.

Brief of National Association of Criminal Defense Lawyers and California Attorneys for Criminal Justice as Amici Curiae in Support of Petitioner (On Merits).

Argument: A rule categorically permitting warrantless entry into a private residence in pursuit of a fleeing misdemeanant would be dangerously overbroad and conflict with long-standing Fourth Amendment jurisprudence requiring case-by-case analysis of whether exigent circumstances justify the entry. An extensive survey of cases involving such entries reveals that many spiral out of control, often resulting in property damage and personal injury to officers, suspects, and innocent third parties. Further, law enforcement interests typically justifying warrantless entries—preventing evidence destruction or protecting the safety of officers and the public—are not implicated in many misdemeanant pursuits. A case-by-case approach would permit warrantless entry when a particular misdemeanant poses a serious threat to people or evidence while encouraging officers to briefly pause and seek a warrant in the many cases where neither the suspected crime nor the circumstances of the pursuit justify putting lives or property at risk.

Brief of the National Association of Criminal Defense Lawyers and the American Civil Liberties Union as Amici Curiae in Support of Petitioners. 

Argument: This case asks whether a reasonable jury could find that police officers use excessive force when they kill a shackled and handcuffed arrestee inside of a jail cell by compression asphyxiation. The Eighth Circuit’s decision departs from an otherwise uniform national rule established by all other courts of appeals that have addressed the issue that the Fourth and Fourteenth Amendments categorically prohibit the asphyxiation of a restrained arrestee or pre-trial detainee who poses no threat to officers or others. The national rule applied outside of the Eighth Circuit is the only rule that conforms to the Supreme Court’s cases governing the use of deadly force, is deeply rooted in the Fourth Amendment and prevailing common-law rules, and is consistent with statutes and law enforcement policies already in effect across American jurisdictions. Categorically prohibiting the use of deadly force, such as compression asphyxia, on restrained citizens is essential to the fair administration of criminal justice. 

Attorney-client communications caselaw at the U.S. Supreme Court

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

Argument: Certiorari is warranted because the Third Circuit’s decision prohibits a whole class of crack-cocaine offenders from being eligible for resentencing under the First Step Act while identically situated defendants in other circuits may be resentenced.  The Third Circuit’s rule is inconsistent with Congress’s goal of providing relief to low-level drug offenders because it excludes the lowest-level offenders and those with uncertain drug amounts from resentencing while allowing those who possessed greater amounts of crack cocaine to obtain relief.  Defendants convicted for possessing lower-quantities of crack cocaine could receive substantial sentence reductions even though they remain eligible for the same sentence.  The Third Circuit’s rule frustrates Congress’s goal of providing relief to the disproportionate number of Black Americans incarcerated for crack-cocaine offenses.