Amicus Committee

NAPD’s Amicus Committee supports critical issues facing public defenders, assigned counsel, and their clients before the state and federal courts by filing amicus briefs at the request of counsel and approval of the Committee. Jennifer Kinsley, Professor at Northern Kentucky University School of Law, and Janet Moore, Professor at the University of Cincinnati Law School, co-chair the Committee. Both are former public defenders. Members seek opportunities for amicus contribution and participate in brief writing as needed. The Committee meets on an as-needed basis and is looking for good researchers and writers to assist. Contact Heather H. Hall if you are interested in being part of the NAPD Amicus Committee.

Thus far, the Amicus Committee has submitted briefs in the following cases:

Case: Sneed v. Burress, 500 S.W.3d 791, 795 (Ky. 2016), reh'g denied (Oct. 20, 2016), petition for cert to SCOTUS
Filed: March 24, 2017 
Author:  Daniel J. Canon, Clay Daniel Walton & Adams & University of Louisville Cert Clinic
Issue: Can defense counsel describe complaining witness as a liar in opening statement, where that description is the essence of the defense?
Co-Amici: NACDL, KACDL 
Outcome: Pending

Case:
 McWilliams v. Dunn, SCOTUS 16-5294, Steve Bright to argue April 24, 2017
Filed: March 6, 2017 
Author: George H Kendall & Jenay Nurse, Squire Patton Boggs (US) LLP 
Issue:
 Is defense is entitled to independent expert under Ake v. Oklahoma instead of expert working for both prosecution and defense?
Co-Amici: NLADA, NACDL and 23 capital attorneys and investigators
Outcome: Pending 
 
Case: Weaver v. Massachusetts, SCOTUS cert petition No. 16-240  
Filed: March 6, 2017 
Author: Larry Fox, Yale Legal Ethics Bureau
Issue: Does failure to preserve structural error (open courtroom) require automatic reversal or satisfaction of Strickland ineffective assistance standard?
Co-Amici: Louis Stein Center for Law and Ethics, Fordham University School of Law, the Monroe H. Freedman Institute for the Study of Legal Ethics, Maurice A. Deane School of Law, Hofstra University, and additional law professors
Outcome:
 Pending 


Case: People of Illinois v. Amy Campanelli (No. 120997), Supreme Court of Illinois 
Filed: February 22, 2017 
Author: Anne Geraghty Helms & Lawrence A. Wojcik, DLA Piper LLC
Issue:
 
Can trial courts deny motions to withdraw based on conflicts of interest?  
Outcome: Pending
 
Case: Berthiaume v. Smith & City of Key West, 11th Circuit appeal from 15-10001-cv (SD Fla.) 
Filed: February 15, 2017 
Author: Ethan Rice, Fair Courts Project & Whitney Untiedt, Akerman LLP
Issue:
 
Are strikes against lesbian and gay jurors unconstitutional under Batson, when (and when not) there is a constitutional requirement to allow voir dire on sexual orientation bias because sexual orientation is “inextricably bound up with the evidence at trial”?
Co-Amici: Lambda Legal, 
FACDL, ACLU-Florida, & the National LGBT Bar Association
Outcome: Pending 
 
Case: Sinclair v. Lauderdale County, TN et al., (6th Cir.), petition for SCOTUS writ of certiorari 
Filed: February 15, 2017 
Author: Adam Lamparello, Indiana Tech 
Issue: Does a law enforcement official’s erroneous interpretation of a criminal statute constitute a reasonable mistake of law and create probable cause to support an arrest despite statute’s unambiguous language excluding the accused’s conduct from its reach (shielding law enforcement officers from Section 1983 liability for civil rights violations under the Fourth Amendment)?
Co-Amici: Additional law professors 
Outcome: Pending 

Case: Buehler v. City of Austin, Texas, No. 15-50155 (5th Cir.), petition for SCOTUS writ of certiorari
Filed: January 4, 2017
Author: Melissa Arbus Sherry & Stephen Barry, Latham and Watkins, LLP
Issue: Does the independent intermediary doctrine shields law enforcement officers from Section 1983 liability for civil rights violations under the Fourth Amendment?
Outcome: Pending

Case:  Brown v. Bowersox (16-6474), petition for SCOTUS writ of certiorari
Filed:  November 17, 2017
Author: Marsha L. Levick, Riya Saha Shah, Juvenile Law Center
Issue: 1) Is there a constitutional right to sentencing in a court of law, such that relinquishing absolute sentencing authority to the parole board in a Miller-Montgomery case violates the Fourteenth Amendment’s Due Process Clause, and the Sixth Amendment’s Right to Counsel, Right to Public Trial, and Right to Jury Clauses? 2) Does the continued imposition of a life without parole prison term, plus ninety consecutive years, for a fifteen-year-old child who did not personally kill, was unarmed during the store robbery, and did not engage in any act of physical violence towards the decedent, violate the Eighth and Fourteenth Amendments’ prohibition against cruel and unusual punishment? 3) Does the continued imposition of a life without parole prison term, plus ninety consecutive years, upon a fifteen-year-old child who was following orders of an adult during a robbery that resulted in death, violate the Eighth and Fourteenth Amendments’ prohibition against cruel and unusual punishment? 
Co-Amici: Juvenile Law Center, MACDL
Outcome: Pending

Case: Christenson v. U.S., Nos. 08-80531 and 10-50472 (9th Cir.), petition for SCOTUS writ of certiorari
Filed: November 7, 2016
Author: Igor V. Timofeyev, Partner, Paul Hastings LLP, for NAPD 
Issue: Does the Sixth Amendment guarantee of a unanimous verdict by an impartial jury (a) preclude a court from removing a juror during deliberations when the record discloses any possibility that the removal request stems from the juror’s views on the merits of the case and (b) preclude a court from questioning the jury when faced with allegations of juror misconduct that could be related to the merits? Further, as the plain text provides, does Title III require suppression of all recordings made for the purpose of committing a criminal or tortious act?
Outcome: Pending
 
Case: Kevin Bridgeman, et al. v. District Attorney for the Suffolk District, et al., Massachusetts Supreme Judicial Court No. SJC-12157
Filed: October 24, 2016
Author: Patricia Dejuneas, with assistance from Carlton Fields, Sylvia Walbolt, Nicholas A. Brown, and Carolyn Bartow
Issue: Where rogue forensic analysis tainted the evidence in thousands of low-level drug cases, does due process or the exercise of the Court’s superintendence authority require all of those convictions to be dismissed with prejudice or with limited leave to refile within one year upon certification of sufficient untainted evidence to prove guilt beyond a reasonable doubt? 
Outcome:
Within 90 days prosecution must (a) identify convictions that they (i) move to dismiss with prejudice or (ii) dismiss for retrial with untainted evidence and (b) notify defendants fully of their rights, including rights to appointed counsel; cases may also be dismissed if CPCS is unable to assign counsel for all eligible defendants (consistent with NAPD's amicus argument!).

Case: U.S. v. Serrano-Mercado, (16-237), cert to the Supreme Court of the United States (from 1st Circuit Court of Appeals)

Filed: September 23, 2016
Author: Dorothy Heyl, Milbank Tweed Hadley & McCloy LLP for NAPD
Issue: Does the government or the defendant bear the burden of proof on appeal for a defaulted claim of sentencing error based on the misclassification of a prior as a crime of violence for purposes of sentence enhancement? 
Outcome: Pending

Case: Christeson v. Roper, 8th Circ. Court of Appeals, No. 16-2730
Initial Brief Filed: August 19, 2016
Subsequent Brief Filed: January 30, 2017 in SCOTUS to support stay of 1/31/17 execution & cert petition
Authors Initial Brief:  Mae Quinn & Amy Breihan, MacArthur Justice Center St. Louis
Author Subsequent Brief: Janet Moore
Issue:  Does a $10,000 cap for capital habeas investigation to challenge procedural default of original counsel’s failure to timely file original habeas petition constitutes effective denial of counsel and fair hearing?
Co-Amici (both briefs): NLADA, NACDL, MacArthur Justice Center
Outcome: 8th Cir. remanded for hearing; district court set impossible (less than 40-hour) deadline for hearing on 1/20/17 after obtaining 1/31/17 death warrant and expediting appeal; district court denied relief, 8th circuit affirmed, SCOTUS denied motion to stay and cert petition a few minutes before execution; Justice Ginsberg would have granted the stay; Governor denied clemency; execution at 7:10 PM CST on January 31, 2017.
Other: Brief Author Janet Moore's blog post on the heroic efforts to avoid Mr. Christeson's execution can be read HERE

Case: Office Of The Public Defender, Eleventh Judicial Circuit Of Florida, v. Milena Lakicevic (3D15-2084), Third District COA of Florida
Filed: August 1, 2016
Author: Lawrence Fox, Ethics Bureau at Yale, for NAPD
Issue: Can a public defender be forced to disclose contact information for former client to civil plaintiffs suing for damages allegedly incurred during incident that led to criminal charges for which public defender represented former client?
Co-Amici: Ethics Bureau at Yale, FACDL, U of Miami School of Law Center for Ethics & Public Service
Outcome: 
A win!

Case:  State v. Beasley, Supreme Court of Ohio (Case No 2016-1020), Ohio Court of Appeals, First Appellate District
Filed: July 11, 2016
Author: David Singleton, Ohio Justice & Policy Center for NAPD
Issue: Does counsel’s unopposed reconstruction of in-chambers conference with judge and prosecutor preserve issue of judge’s blanket policy to deny no-contest pleas and defendant’s objection to entering guilty plea that eliminated right to appeal judge’s ruling on motion to suppress?
Outcome: Review granted; merits briefs pending.
 
Case: Elijah Manuel v. City of Joliet, Illinois, Et Al. (No. 14-9496), United States Supreme Court
Filed: May 9, 2016
Author: Timothy P. O’Toole, Miller & Chevalier Chartered for NAPD
Issue:  Will the Court interpret the Fourth Amendment to permit malicious prosecution claims as a remedy for all of the many harms that result directly from the unreasonable seizure of individuals after the initiation of legal process, but without probable cause?
Outcome: Decision on 3/21/17: 
In agreement with the NAPD position, the court ruled that people can challenge their pretrial detention on the grounds that it violated the Fourth Amendment.

Case: United States v. Michael Bryant (No. 15-420), United States Supreme Court
Filed: March 24, 2016
Author: Gene C. Schaerr and S. Kyle Duncan, Schaerr Duncan, LLP
Issue: Despite the constitutional doubts doctrine, the rule of lenity and the Indian law canon, must 18 U.S.C. 117(a) be construed to include even uncounseled convictions in tribal courts?
Outcome: SCOTUS reversed Ninth Circuit decision favoring Bryant, 136 S. Ct. 1954 (June 13, 2016) 

Case: Thomas Kelsey v. State of Florida (No. SC 15-2079), Supreme Court of Florida
Filed: January 19, 2016
Authors: Paolo Annino and Justin Karpf, Public Interest Law Center, Marsha Levick, Juvenile Law Center
Issue: What constitutes lengthy term of year sentences for juveniles in Florida?
Outcome: Pending
 
Case: Doe v. Snyder (No. 15-2346/2836), Sixth Circuit
Submitted: January 11, 2016
Authors: Valerie Newman, Michael Mittlestat, Deday Larene, Craig Jacquith, Candace Crouse, Jennifer Kinsley
Issue: Does retroactive application of increased sanctions in Michigan’s sex offender registration law contravene due process and the ex post facto clause?
Outcome: Court ruled that retroactive application of Michigan’s sex offender registration law violates the ex post facto clause (consistent with NAPD amicus argument!)

Case: Luna Torres v. Lynch (No. 14-1096), cert to SCOTUS
Filed: August 25, 2015
Authors: David Debold, Gibson, Dunn & Crutcher LLP
Issue:  Does a state offense constitute an aggravated felony under 8 U.S.C. § 1101(a)(43), on the ground that the state offense is “described in” a specified federal statute, where the federal statute includes an interstate commerce element that the state offense lacks?
Outcome: Conviction affirmed, 136 S. Ct. 1619 (May 19, 2016)
 
Case: Nguyen v. North Dakota, 14-973, cert to SCOTUS
Filed: April 22, 2015
Author: Mark T. Stancil, Robbins, Russell, Englert, Orseck, Untereiner & Sauber LLP
Issue: Do people who live in apartments in locked apartment buildings enjoy the same privacy protections respecting their homes as people who live in single-family dwellings?
Co-Amici: NACDL
Outcome: Denied Writ of Certiorari 6/29/15

Case: Re: Office of the Hinds County Public Defender (No. 13-M-00397), Supreme Court of Mississippi
Filed: March 24, 2015
Author: John P. Gross, University of Alabama School of Law and NAPD Amicus Committee Member
Issue: Can a trial court judge select which deputy public defenders may appear in his or her courtroom?
Outcome: Once a county has created a public defenders office, state law requires that a judge appoint that office to represent an indigent defendant absent a conflict of interest; the trial court's claims regarding the competency of the assistant public defender assigned to the judge's courtroom are unpersuasive (consistent with NAPD's amicus argument!)
 
Case: Bright v. Galilla County (No. 14-877), United States Supreme Court
Filed: February 16, 2015
Author: Jennifer M. Kinsley, Northern Kentucky University Salmon P. Chase College of Law and NAPD Amicus Committee Member
Issue: Do public defenders retain First Amendment rights in their motions and pleadings, such that they cannot be terminated from government employment when the court dislikes their arguments and removes them from representing indigent clients?
Outcome: Denied Writ of Certiorari 3/23/15
 
Case: Angelica C. Nelson v. Wisconsin (No. 14-555), United States Supreme Court
Filed: Dec. 15, 2014
Author: Bruce E. Yannett, Debevoise & Plimpton LLP
Issue: In Rock v. Arkansas, 483 U.S. 44 (1987), the United States Supreme Court held that a criminal defendant has a constitutional right under the Fifth, Sixth, and Fourteenth Amendments to “take the witness stand and to testify in his or her own defense.” However, is the denial of this right structural error or is it subject to harmless error analysis?
Outcome: Denied Writ of Certiorari 3/30/15
 
Case: Grassi v. Colorado (No. 14-5963), United States Supreme Court
Filed: October 15, 2014
Authors: Jeffrey T. Green, NACDL and Timothy P. O’Toole, Miller & Chevalier Chartered for NAPD.
Issue: Does the Fourth Amendment permit a police officer to conduct a search or seizure when neither that officer, nor any officer in the chain of command, possesses the requisite amount of suspicion necessary to justify the search or seizure under the Fourth Amendment?
Outcome: Denied Writ of Certiorari 11/17/14
 
Case: United States v. Rodriguez-Vega (No. 13-56415 ), 9th Circuit Court of Appeals
Filed: August 14, 2014
Authors: Rebecca Sharpless, Immigration Clinic of the University of Miami School of Law and Sejal Zota, National Lawyers Guild
Issue: Does proper construction of Padilla v. Kentucky require defense counsel must do more than merely advise noncitizen clients of possible deportation when deportation is virtually certain? 
Outcome: Defense counsel’s failure to inform the accused of virtual certainty of removal prior to her guilty plea amounted to deficient performance. The conviction was vacated and remanded.


Committee Members:


NAPD News

On March 18, 2017 - the 54th anniversary of the Gideon v. Wainright decision - NAPD published its Foundational Principleswhich are recommended to NAPD members and other persons and organizations interested in advancing the cause of equal justice for accused persons.  

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On March 2, 2017, NAPD released its Statement on Reducing Demand For Public Defense: Alternatives to Traditional Prosecution Can Reduce Defender Workload, Save Money, and Reduce RecidivismThere are more than 2 million people in jail and prison in the United States. This is a four-fold increase since 1980. This increase and the racial disproportionality among incarcerated people has led to alliances across the political spectrum to address the impact on people and on budgets.  As the new Coalition for Public Safety has put it, “Our country has an ‘overcriminalization’ problem and an ‘overincarceration’ problem — and it’s getting worse." NAPD authored this statement because there is a great opportunity to make transformative changes that can improve justice and save money.  A variety of organizations representing a wide spectrum of political views have joined together to end the systematic problem of overcriminalization and narrow the net of incarceration by reforming criminal codes.