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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

    Smith v. Maryland

    Brief in Support of Appellant of Amici Curiae National Association of Criminal Defense Lawyers, Maryland Criminal Defense Attorneys Association, and the Innocence Network.


    Argument: NACDL’s amicus brief argues that the State’s misconduct in this case was truly startling; indeed, it is among the most serious examples of prosecutorial misconduct in amici’s collective experience.  The record shows that the prosecution: (1) suppressed “a fountain of favorable evidence from the defense”; (2) “[s]ponsored dubious claims from a credibility-ravaged witness who tainted every other prosecution witness”; (3) “made serial false representations to the defense, to jurors, and to the trial court about critical exculpatory evidence”; and (4) testified falsely under oath to hide its misconduct.  This misconduct was an attempt to shore up a weak case in which there was no physical evidence to link Mr. Smith or his co-defendants to the crime, and there was physical evidence that pointed away from them.  Authority from jurisdictions throughout the country supports the dismissal of the indictment under these circumstances.  Prosecutorial conduct that is “so grossly shocking and outrageous as to violate the universal sense of justice” requires dismissal of a resulting prosecution on due process grounds.  A case also can be dismissed under a court’s supervisory powers even if “the conduct does not rise to the level of a due process violation.”  The egregious misconduct found by the court of appeals satisfies either standard.  Retrial would not adequately address the egregious misconduct that occurred in this case because (1) the extensive misconduct here was unusually extreme and shocks the conscience, and it created pervasive prejudice that would prevent Mr. Smith from receiving a fair retrial, and (2) any remedy short of dismissal would be inadequate to deter the type of intentional, willful, and reckless misconduct that the court of appeals recognized and the State now admits.  While dismissal is an extreme remedy, courts have invoked it regularly in cases with extreme facts of the type found here.