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Brief in Support of Certiorari
U.S. Supreme Court
This case offers the Court an opportunity to clarify decades of confusion on a critical Sixth Amendment question: how to assess prejudice when the government unjustifiably intercepts a defendant’s confidential attorney-client communications. The Tenth Circuit’s en banc decision requires defendants to show discrete, trial-specific prejudice, even where prosecutors have intentionally and unjustifiably intruded on the defense’s attorney-client confidences. That burden will be impossible for defendants to meet in most cases, which is why other Circuits have refused to adopt this rule.
Petition for certiorari denied October 14, 2025.
We thank Douglas E. Litvack, Anand Viswanathan, Charles Corbett, and Hoyeon Kelley Lew of Jenner & Block LLP for their pro bono work on this case.
Brief in Support of Certiorari
U.S. Supreme Court
In Cuyler v. Sullivan, the Court held that a defendant alleging ineffective assistance of counsel based on a lawyer’s conflict of interest need not demonstrate outcome-determinative prejudice to obtain relief. Instead, a defendant need only show that an “actual conflict of interest adversely affected his lawyer’s performance.” In this amicus brief, we argue Sullivan should apply when an attorney has a personal conflict of interest, and not just when an attorney is concurrently representing multiple defendants.
Filed with Human Rights Defense Center, Idaho Association of Criminal Defense Lawyers, and the National Association for Public Defense.
Petition for certiorari denied May 16, 2022.
We thank Douglas E. Litvack, Hope H. Tone-O’Keefe, and Adam M. Caldwell for their pro bono work on this case.
Brief in Support of Plaintiffs
Louisiana Supreme Court
This amicus brief, joined by an impressive array of ideologically diverse co-amici, argues that the 6th Amendment prohibits states from systemically under-funding public defender offices and explains how the Framers intended the Constitution to establish a vibrant adversarial criminal legal system, not a “sacrifice of unarmed prisoners to gladiators.”
Filed with the American Conservative Union Foundation Nolan Center for Justice, Cato Institute, Freedomworks Foundation, the James Madison Institute, R Street Institute, Innocence Project New Orleans, The Innocence Project, National Legal Aid & Defender Association, Public Defender Services for the District of Columbia, and Promise of Justice Initiative.
Petition for certiorari denied on June 23, 2021.
Due Process Institute also thanks Chloé Chetta of Barrasso Usdin Kupperman Freeman and Timothy O’Toole of Miller & Chevalier for their pro bono work on this matter.
Brief in Support of Plaintiffs
Louisiana First Circuit Court of Appeal
This amicus brief, joined by an impressive array of ideologically diverse co-amici, argues that the 6th Amendment prohibits states from systemically under-funding public defender offices and explains how the Framers intended the Constitution to establish a vibrant adversarial criminal legal system, not a “sacrifice of unarmed prisoners to gladiators.”
Filed with American Conservative Union Foundation Nolan Center for Justice, Cato Institute, Freedomworks Foundation, the James Madison Institute, R Street Institute, Innocence Project New Orleans, The Innocence Project, National Legal Aid & Defender Association and Public Defender Services for the District of Columbia.
Louisiana First Circuit Court of Appeal’s unfortunately ruled against the plaintiffs. You can read the decision here.
Due Process Institute also thanks Chloé Chetta of Barrasso Usdin Kupperman Freeman for her amicus support on this matter.
Amicus Brief in Support of Certiorari
U.S. Supreme Court
The question presented is whether the Sixth Amendment right to counsel attaches before an indictment in a situation where a prosecutor threatens to indict a defendant unless the defendant accepts a plea offer.
Petition for certiorari denied June 24, 2019.
Due Process Institute wishes to thank Cozen O’Connor for their amicus support in this matter, particularly Stephen A. Miller, Barry Boss, and Kara L. Kapp. We also thank Cato Institute for joining our brief.