Amicus Committee

The NAPD Amicus Committee is addressing issues facing public defenders, assigned counsel, and their clients before the state and federal courts. This committee will file amicus briefs on behalf of NAPD upon request of the client or counsel and approval of the Committee. The Committee will address systemic issues, such as the lack of independence for an indigent defense system or excessive caseloads, as well as other significant criminal justice issues, such as the handcuffing of juveniles or prosecutorial misconduct. Sara Thomas, the State Appellate Defender for Idaho, chairs the committee. The committee is looking for good researchers and writers to join this exciting committee. Thus far, the Committee has submitted briefs of amicus curiae in the following suits:

United States v. Rodriguez-Vega, Docket No. 13-56415 (9th Cir.), submitted August 14, 2014

The issue: Amici argue that a proper construction of Padilla v. Kentucky, 559 U.S. 356 (2010), is that defense counsel must advise noncitizen defendants that deportation is presumptively mandatory when a proposed plea falls within a removal ground.  Defense counsel must do more than merely advise noncitizen clients of possible deportation when deportation is virtually certain.  Instead, it is urged, defense counsel must give a strong warning of virtually certain deportation, even if immigration relief is potentially available.  It is also stressed that judicial admonitions are no substitute for advice from counsel regarding deportation consequences. The amici brief was co-authored by Professor Rebecca Sharpless of the Immigration Clinic of the University of Miami School of Law and Attorney Sejal Zota of the National Immigration Project of the National Lawyers Guild. NAPD joined with the National Association of Criminal Defense Lawyers, the National Immigration Project of the National Lawyers Guild, the Immigrant Defense Project, and the Immigrant Legal Resource Center in this endeavor. You can read the brief HERE

Grassi v. Colorado, U.S. No. 14-5963, submitted October 15, 2014

The 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? The Colorado Supreme Court answered the question “yes,” by applying a doctrine that allowed the seizing officer’s knowledge to be pooled with that of other officers with whom he had not spoken and who were not in the chain of command. Many other courts have answered the question “no” on the same or similar facts. These conflicting decisions create confusion in an important area of Fourth Amendment law, an area in which clear rules are most vitally needed. The Court's corrective intervention is needed to return uniformity and coherence to this important area of the law, and Petitioner’s case (in which the questions presented were fully litigated below) presents an excellent vehicle for doing so. The Court should grant the petition. The amicus brief was filed jointly with the National Association of Criminal Defense Lawyers, and was authored by Jeffrey T. Green and Timothy P. O’Toole. You can read the brief HERE

Angelica C. Nelson v. Wisconsin, Docket No. 14-555 (USSCT), submitted Dec. 15, 2014

The 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, the Court has not yet decided whether the denial of this right is structural error or is subject to harmless error analysis. In this case, before allowing Ms. Nelson to testify, the trial court questioned her about her proposed testimony. The court then refused to allow her to testify finding that she would not be challenging the elements of the crime and that testifying “wouldn’t be a good idea.” On review, the Wisconsin Supreme Court recognized a split of authority on whether such an error is subject to harmless error review, but found that it was. The court then determined that the error in this case was harmless. Ms. Nelson seeks review in the United States Supreme Court and asks the Court to determine whether the error was structural error or subject to harmless error review. Recognizing that the persistent uncertainty surrounding a defendant’s right to testify improperly complicates defense strategy and threatens to erode respect for the criminal justice system in the eyes of defendants and the public alike, the National Association for Public Defense teamed with the National Association of Criminal Defense Lawyers to file an Amici Brief in support of the grant of the writ of certiorari. The brief was written by Bruce E. Yannett, of Debevoise & Plimpton LLP of New York. You can read the brief HERE

Bright v. Galilla County (Docket No. 14-877), USSCT filed on February 16, 2015

The 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? The Sixth Circuit answered this question in the negative, ruling in Bright v. Gallia County, 753 F.3d 639 (6th Cir. 2014), that attorneys’ arguments on behalf of their clients are not protected by the First Amendment. NAPD’s amicus brief, which was joined by a number of state criminal defense organizations and the Center for Constitutional Rights, urged the Supreme Court to accept review of the case. The brief focused on the pivotal role public defenders have played in shaping the nation’s criminal jurisprudence, as well as the chilling effect the Sixth Circuit’s ruling is likely to create on vigorous, zealous, and constitutionally-required indigent defense. Prof. Jennifer M. Kinsley of the Northern Kentucky University Salmon P. Chase College of Law authored and filed the brief on NAPD’s behalf. You can read the brief HERE

Re: Office of the Hinds County Public Defender, Supreme Court of Mississippi filed on March 24, 2015

The issue: Can a trial court judge select which deputy public defenders may appear in his or her courtroom? In Mississippi a Hinds County Circuit Court Judge demanded that the cases assigned to a specific public defender be transferred to other members of the Hinds County Public Defender’s Office. The Chief Public Defender refused the judge’s demands, was held in contempt and the judge relieved the Hinds County Public Defender’s Office from all of the cases pending before him. The issues before the Supreme Court of Mississippi were to what extent, and under what circumstances, can a trial court judge prohibit the appearance of a specific public defender before him and what authority does the trial court have to substitute counsel for a defendant. Both of these issues raised questions regarding the independence of a public defender’s office. The National Association of Public Defenders filed an amicus brief that argued Mississippi’s indigent defense system requires the appointment of the public defender’s office unless there is a conflict of interest, that the judges actions were an attempt to impose judicial control over the public defender’s office in violation of the first of the ABA’s “Ten Principles of a Public Defense Delivery System” and that the substitution of defense counsel is a violation of a defendant’s Sixth Amendment Right to Counsel.  The brief was written by John P. Gross, Assistant Professor of Clinical Legal Education at the University of Alabama School of Law. The Ruling: The Supreme Court of Mississippi ruled that once a county has created a public defenders office, the law requires that a judge appoint that office to represent an indigent defendant absent a conflict of interest. The Supreme Court also found the trial court's claims regarding the competency of the assistant public defender assigned to the judge's courtroom unpersuasive. You can read the brief HERE

Committee Members