Letter to members of the Judicial Conference regarding proposed changes to the Federal Rules of Criminal Procedure applicable to criminal forfeiture.

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

Argument: The Eleventh Circuit reaffirmed that a person violates the CFAA by using a computer to access information for an improper purpose, even if otherwise authorized to access that information.  This reading goes beyond the CFAA’s text, fails to account for Congress’ intent in enacting it, and flouts the rule of lenity, which requires that ambiguous criminal statutes be construed in a defendant’s favor.  The decision below also interpreted the CFAA in a manner that raises due process concerns, both because it is an unconstitutionally vague reading of the statute and because it invites arbitrary and discriminatory enforcement, and thus the doctrine of constitutional avoidance requires that Petitioner’s reading of the statute prevail.  Further, an expansive reading of the CFAA would contribute to the trend of overcriminalization and give courts and prosecutors a backdoor method of updating criminal laws in response to changed technological—or potentially cultural, economic, or political—realities, something our constitutional structure reserves for Congress.

Brief of Amicus Curiae National Association of Criminal Defense Lawyers in Support of Plaintiff

Argument: Texas Governor Greg Abbot’s Executive Order GA-13 of March 29, 2020 seeks to order that Texas judges may not release persons to personal bonds where the person has previously been convicted of a crime that involves physical violence or the threat of physical violence or of a person currently arrested for such a crime; that is supported by probable cause. Leaving aside the vague terms of this executive order, it encroaches on the function of the courts to determine whether persons should be released on personal bond, whether they should be released on electronic monitoring, or should be released on a cash or surety bond with conditions. It does not prohibit release of this same class of described persons on cash or surety bail. Therefore, it appears to place restrictions for release on the poor over those for those of greater means without any rational relationship to a distinguishing important governmental purpose. Thus, those previously convicted of the defined crimes or currently charged with those crimes can obtain release; while those without the economic means to post a cash or surety bail cannot obtain release. Under the circumstances presented by the COVID 19 pandemic and the Texas Criminal justice system, GA 13 violates the separation of powers, interferes with judicial independence, violates equal protection and due process of law, and constitutes cruel and unusual punishment for those who cannot afford cash or surety bail who otherwise qualify for release on personal bond. 

Member Richard Kammen's written statement to the House Appropriations Committee regarding adequate funding and training for defender services to ensure adequate representation for those who cannot afford it.

President John Wesley Hall's written statement to the House Judiciary Subcommittee on Crime, Terrorism, and Homeland Security regarding overcriminalization of conduct and overfederalization in the criminal code.

President Gerald Goldstein's written statement to the House Judiciary Subcommittee on Crime and House Government Reform and Oversight Subcommittee on National Security, International Affairs and Criminal Justice regarding government and law enforcement conduct in the 1993 confrontation between Branch Davidians and law enforcement in Waco, TX, and proposed changes in Exclusionary Rule Reform Act of 1995 (H.R. 666) and Violent Crime Control and Law Enforcement Improvement Act of 1995 (S. 3).

Memorandum of Law of the New York State Association of Criminal Defense Lawyers, the National Association of Criminal Defense Lawyers, DKT Liberty Project, The Legal Aid Society, Brooklyn Defender Services, The Bronx Defenders, The Chief Defenders Association of New York, The New York State Defenders Association, Robert F. Kennedy Human Rights, and Discovery for Justice as Amici Curiae in Support of Defendant Carl E. Heastie's Cross-Motion for Summary Judgment. 

Argument: The legislature, empowered to regulate state prosecutors, may exercise its policy judgment to hold prosecutors accountable for misconduct or otherwise abrogate traditional immunities. Because existing mechanism fail to hold prosecutors accountable for misconduct, it is unsurprising that the legislature concluded the commission is necessary. That prosecutors rarely face accountability for misconduct is a widespread, long-standing, and well-documented problem. The record in New York is no exception, and prosecutors currently escape any accountability for misconduct. The commission will provide accountability that is currently absent.

Brief for Amici Curiae National Association of Criminal Defense Lawyers, Washington Legal Foundation, Cato Institute, Reason Foundation and Twelve Criminal and Business Law Scholars In Support of Defendants-Appellant Todd S. Farha's Petition for Rehearing En Banc.

Argument: The Court should grant appellant's petition for rehearing and rehearing en banc. The Supreme Court in Global-Tech expressly held that "deliberate indifference" is a less demanding and therefore inadequate formulation of "knowledge." "Deliberate indifference" is not "knowledge." Permitting knowledge to be satisfied by proof of "deliberate indifference" would eliminate an essential check on prosecutorial power, violate the separation of powers, and open the floodgates for further overcriminalization.

Amicus curiae brief of the Association of the Bar of the City of New York, the Brennan Center for Justice at New York University School of Law, the Constitution Project, People for the American Way Foundation, the Rutherford Institute, and the National Association of Criminal Defense Lawyers in support of Petitioners.

Argument: The court of appeals’ ruling undermines the “judicial Power” conferred by Article III of the Constitution and the role of an independent judiciary in our constitutional system of separated powers. 

Amicus curiae brief of the Brennan Center for Justice at New York University School of Law, the Constitution Project, the Rutherford Institute, and the National Association of Criminal Defense Lawyers in support of Petitioner.

Argument: The Executive’s asserted authority to indefinitely detain conceded non-enemy combatants is inconsistent with the Suspension Clause, Article III, and the Constitution’s framework of separated powers.

Brief of Amicus Curiae National Association of Criminal Defense Lawyers in Support of Appellant and Suggesting Reversal.

Argument: If the Court finds that the general duty to comply with the legislative purpose of SORNA provided the Attorney General an “intelligible principle” for deciding whether to make the law retroactive, then the Court must decide whether that standard satisfies the Constitutional non-delegation rule in a criminal context. Appellant’s case presents the constitutional delegation question in stark form, and because of the date of his prior convictions and the time period when he failed to register, the issue cannot be avoided on statutory grounds. The complete and standardless Congressional assignment to the Attorney General of authority to decide the extent of SORNA’s retroactivity violates any Constitutional standard limiting delegation of the legislative power. When the Legislature empowers an Executive agency, and in particular the Attorney General, to decide what conduct will constitute a crime, Congress must “meaningfully constrain” the exercise of that delegated authority.

Brief of National Association of Criminal Defense Lawyers and the New York Council of Defense Lawyers as Amici Curiae Opposing the Petition of the United States for Rehearing or Rehearing En Banc.

Argument: The panel’s definition of “personal benefit” represents a faithful application of Dirks and a welcome clarification of the law in this Circuit. The panel correctly applied Dirks. The panel properly clarified the applicable standard for personal benefit. A loose standard for personal benefit would raise serious issues under due process and separation of power principles.

Brief of Amicus Curiae National Association of Criminal Defense Lawyers as Amicus Curiae In Support of Petitioner

Argument: Congress’s definition of burglary as surreptitiously remaining embodies a contemporaneous intent requirement. Eliminating burglary’s contemporaneous intent requirement would violate the principles of due process and separation of powers underlying the rule of lenity.

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

Argument: The Court should overrule Loving v. United States, which is no longer good law in light of Ring v. Arizona. Rules for Courts-Martial 1004 violates constitutional separation-of-powers principles. Only Congress may define the elements of a criminal offense. The foregoing separation-of-powers principles apply equally in the military justice system.

Brief of Amici Curiae National Association of Criminal Defense Lawyers, Ninth Circuit Federal Public and Community Defenders, and Professor Erwin Chemerinsky in Support of Petition for a Writ of Certiorari.

Argument: The Court should grant the writ to clarify the appropriate standard for a sua sponte harmless error analysis. To safeguard the Sixth Amendment jury trial right, harmless error review must be carefully limited. The Court of Appeals' harmless error analysis ignored tis Court's limits and violated petitioner's Sixth Amendment jury trial right. The Court of Appeals' deeply flawed conclusion demonstrates the dangers of sua sponte harmless error review. The Ninth Circuit's affirmance of warrantless surveillance under § 702 contravenes this Court's jurisprudence and, left uncorrected, will eliminate vast swaths of core Fourth Amendment protection. The reach of the Fourth Amendment exception adopted by the Ninth Circuit is too great to survive constitutional scrutiny and conflicts with this Court's precedent. The Court of Appeals erroneously expanded the third-party doctrine. Review should be granted because § 702 implicates linked constitutional concerns involving the Fourth Amendment, First Amendment, and separation of powers. This is the correct—and perhaps only—vehicle to resolve these constitutional questions.