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    • Brief

    United States v. Perez-Perez

    Amicus Brief in support of Defendant-Appellant’s petition for rehearing en banc by the National Association of Criminal Defense Lawyers and Aoki Center for Critical Race and Nation Studies.

    Argument: In a split decision, the Tenth Circuit (per Ebel, J.) affirmed on plain error review a conviction under 18 U.S.C. § 922(g)(5) (illegal or unlawful alien in possession of a firearm) notwithstanding the fact that during the plea colloquy the judge failed to inform the defendant of two essential elements of the crime:  (1) he had to know his status as a prohibited person; and (2) he was illegally or unlawfully in the United States. There’s a spirited dissent by Judge Bacharach. Although the panel concluded Mr. Perez’s constitutional rights were violated due to these failings when he accepted the plea agreement, the majority nevertheless decided Mr. Perez had not established plain error. The amicus brief argues that the majority erred in not finding plain error pointing out that the evidence of Mr. Perez’s knowledge of his prohibited status was weak and that there was ample record support for this potential defense. The majority instead engaged in speculation about why Mr. Perez accepted the plea agreement (to avoid mandatory minimum charges) when the meagre factual record suggested instead that Mr. Perez did not accept the plea agreement to avoid these charges. Rather, the record is clear that Mr. Perez sought to avoid the trial penalty and to transfer out of the onerous conditions of pretrial detention, which he had suffered for more than 18 months. As a result of the plain error in this case, Mr. Perez is entitled to have his conviction vacated. 

    • Brief

    South Carolina v. Robinson

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

    Argument: Kenneth Robinson’s case is a quintessential example of why people plead guilty under the threat of a trial tax. Kenneth withstood the immense pressure to plead guilty. A child of only fifteen, charged with murder under the “hand of one, hand of all” doctrine, he exercised his right to a jury trial, foregoing a twenty-three-year offer to plea to manslaughter. He refused to relinquish his right to appeal, foregoing a thirty-year plea offer following guilty verdicts at trial. He paid the price. Most defendants plead guilty to avoid the trial tax; Kenneth went to trial, and the trial tax was levied against him in the form of a fifty-year sentence. By contrast, Kenneth’s co-defendants pleaded guilty and received significantly shorter sentences. NACDL is uniquely positioned to observe the criminal justice system. Over time, based on empirical data and the experiences of its members, NACDL has developed an understanding of the trial tax—the reality that individuals who choose to exercise their Sixth Amendment right to trial face exponentially higher sentences if they invoke the right to trial and lose. It is NACDL’s position that the trial tax is antithetical to the American concept of justice because it diminishes jury trials, undermines the legal system’s goal of truth-seeking, relieves the government of its burden of proof, contributes to wrongful convictions, and disproportionately hurts young people. Kenneth Robinson’s case in particular starkly reveals the dangers to a defendant who chooses to exercise his constitutional right to trial.