NYU School of Law

Litigation

The Center’s litigation component uses its research and knowledge of criminal justice and prosecution practices to assist in important criminal justice cases.

In general, the Center's litigation practice concentrates on cases in which exercises of prosecutorial or governmental discretion raise significant substantive legal issues.  Much of the Center’s litigation practice is done in partnership with some of the nation’s most prominent law firms as part of the firms’ pro bono commitment.

Cases in which the Center has participated recently include:

• Carachuri-Rosendo v. Holder -- Supreme Court of the United States -- In this case, the Center filed an amicus brief in support of a petition for writ of certiorari. The petition addresses a circuit split where some federal circuit courts permit immigration courts to treat second or subsequent misdemeanor convictions as recidivist felonies despite a state prosecutor's choice to decline felony charges and the fact that the individual was not actually convicted as a recidivist.  The Center's brief argued that these circuits' decisions improperly interfere with the basic exercise of prosecutorial discretion, undermine state interests in the proper and equitable administration of criminal justice, and can lead to a violation of the right to a jury trial.  This amicus brief was submitted in the Supreme Court of the United States on behalf of the petitioner, in partnership with the law firm Debevoise & Plimpton LLP.
• Colon v. New York -- Court of Appeals, State of New York -- In this case, the Center filed an amicus brief proposing a new, clearer test for determining when a tacit agreement exists between a prosecutor and a cooperating witness to provide benefits to the witness in exchange for testifying against a defendant.  This amicus brief was submitted in the Court of Appeals, State of New York, on behalf of the defendants-appellants, in partnership with the law firm Weil, Gotshal & Manges LLP.
• Pottawattamie County v. McGhee -- Supreme Court of the United States -- The Center filed an amicus brief on behalf of the respondents, who spent nearly 20 years in prison after prosecutors fabricated evidence to frame them for a crime they did not commit.  The Center's brief argued that, like law enforcement agents, prosecutors should receive qualified rather than absolute immunity for unconstitutional actions they take in their investigative capacity.  This amicus brief was submitted in the Supreme Court of the United States in partnership with the law firm Weil, Gotshal & Manges LLP.  The case was argued on November 4, 2009.  During the argument, Justice Sotomayor questioned the Deputy Solicitor General regarding studies that were cited in the Center's brief and that show that, as a matter of routine, prosecutors are not sanctioned for improper conduct.
• United States v. Stevens -- Supreme Court of the United States -- In this case, the Center filed an amicus brief in support of the United States in its prosecution of a defendant convicted at trial of selling videos of pit bulls engaging in heinous, violent dogfights and attacks on other animals.  Sitting en banc, and over a three-judge dissent, the United States Court of Appeals for the Third Circuit found the applicable statute to be facially unconstitutional under the First Amendment.  The Center's brief argued that the lower court erred in its holding because the applicable statute reaches only what amounts to crime-scene photographs and videos that are exploited for commercial gain and lack any serious artistic or other value.  This amicus brief was submitted in the Supreme Court of the United States on behalf of the government, in partnership with the law firm King & Spalding.  The case was argued on October 7, 2009.
• Sullivan v. Florida & Graham v. Florida -- Supreme Court of the United States -- In this case, the Center filed an amicus brief in support of the petitioners, who are juveniles serving life sentences without the possibility of parole.  Sullivan was sentenced to life without parole for a crime he committed at the age of 13, and is one of only two persons in the United States serving such a sentence for a non-homicide crime.  After being sentenced to probation for a non-homicide crime he committed at the age of 16, Graham received a life without parole sentence for, while still a juvenile, violating the terms of his probation.  The Center's brief argued that the text and history of the Eighth Amendment indicate that the "Cruel and Unusual Punishments" Clause prohibits disproportionate criminal sentences, that such proportionality review is necessary in light of the expansion of criminal laws and sentences and the concentration of unreviewable discretionary power in the hands of prosecutors, and that the Supreme Court's practice of applying a robust proportionality review in the capital context while virtually eliminating proportionality review in the noncapital context is unjustified.  This amicus brief was submitted in the Supreme Court of the United States on behalf of the petitioners, in partnership with the law firm Steptoe & Johnson.

Other cases in which the Center participated in the past include:

• Abuelhawa v. United States -- Supreme Court of the United States -- This case involved whether a prosecutor should charge a defendant with a felony for using a cell phone to buy drugs solely for personal use under a statute targeting the use of a "communications device" to "facilitat[e]" a narcotics distribution.  The Center filed an amicus brief on the merits in the Supreme Court of the United States on behalf of the defendant, in partnership with the law firm Davis Polk & Wardwell.  The Center previously had filed an amicus brief in support of a petition for writ of certiorari, also in partnership with Davis Polk, and the Supreme Court granted certiorari on November 14, 2008.  The case was argued on March 4, 2009.  On May 26, 2009, in a unanimous opinion, the Court agreed with the Center that the defendant should prevail.  The Court rested its decision in part on statutory history and Justice Department charging policy, both subjects of the Center's brief.
• Angelos v. United States -- United States District Court for the District of Utah -- This case presents the issue of whether a prosecutor should charge a defendant with no criminal record in a manner that, upon conviction, requires a 55-year mandatory minimum sentence for twice selling approximately $350 of marijuana while armed to a confidential informant and for possessing a gun in his home on another occasion, where that charging decision and sentence contravene the Eighth Amendment, separation of powers principles, Department of Justice charging standards and practices, and the expressed opinions of the trial judge and jury.  This amicus brief was filed in the United States District Court for the District of Utah on behalf of the defendant, in partnership with the law firm Jenner & Block.  The Center filed a second amicus brief in the case, also in partnership with Jenner & Block.  The brief emphasizes the particular importance of policing ineffective assistance of counsel at the plea bargaining stage -- particularly where the defendant faces multiple consecutive mandatory minimum terms of imprisonment, imposed in significant part at the discretion of the Executive -- given that prosecutorial discretion and power is at its zenith during plea bargaining and most criminal cases are disposed of by plea and not by trial.
• Boyle v. United States -- Supreme Court of the United States -- This case raises whether a prosecutor should charge a defendant with an offense under the RICO statute, which Congress enacted to eliminate criminal organizations that pose threats transcending the specific predicate acts in which they engage, where the group of individuals that committed those predicate crimes has no ascertainable structure.  This amicus brief on the merits was filed in the Supreme Court of the United States on behalf of the defendant, in partnership with the law firm Kellogg, Huber, Hansen, Todd, Evans, & Figel P.L.L.C.  The case was argued on January 14, 2009.  On June 8, 2009, the Court ruled for the government.
• Reid v. United States -- Supreme Court of the United States -- This case presents the issue of whether the Confrontation Clause is violated when a defendant is completely precluded from cross-examining an adverse government witness regarding the mandatory minimum sentence the witness would have faced absent his cooperation with the government.  This amicus brief in support of a petition for a writ of certiorari was submitted in the Supreme Court of the United States in partnership with the law firm Munger, Tolles & Olson LLP.  On May 18, 2009, the Court denied certiorari.
• United States v. Slough -- United States District Court for the District of Columbia -- This prosecution raises the issue of whether the United States has jurisdiction to prosecute five former Blackwater Worldwide security guards charged with voluntary manslaughter and other crimes stemming from their involvement in a 2007 shooting incident in a Baghdad square in which they are accused of killing 14 unarmed civilians.  This amicus brief was submitted in the United States District Court for the District of Columbia on behalf of the government, in partnership with the law firm Akin, Gump, Strauss, Hauer & Feld LLP.
• Thompson v. Connick -- United States Court of Appeals for the Fifth Circuit -- In this case, the Center filed an amicus brief in support of John Thompson, who was exonerated just weeks before his scheduled execution after 18 years of wrongful imprisonment.  Thompson won a jury verdict in a federal section 1983 action for violation of his civil rights due to the New Orleans' District Attorney's Office's deliberately indifferent failure to train, monitor, and supervise the prosecutors in that office.  That verdict was affirmed on appeal.  The Center's brief highlighted the importance of training prosecutors on their constitutional obligations pursuant to Brady v. Maryland.  This amicus brief was filed in connection an en banc review by the United States Court of Appeals for the Fifth Circuit on behalf of Thompson, in partnership with the Law Offices of Martin J. Siegel.  On August 10, 2009, in a per curiam opinion, the Fifth Circuit agreed with the Center, vacated the panel opinion, and reinstated the jury's judgment for Thompson.
• Cone v. Bell -- Supreme Court of the United States -- This case involves whether a prosecutor violates applicable constitutional and ethical standards by failing to disclose to the defense exculpatory evidence that was in the prosecution's possession and that bore directly on the sole defense raised by the defendant at trial and sentencing, and then failing in post-conviction proceedings to give an accurate procedural history of the defendant's claim based on that non-disclosure.  This amicus brief was filed on behalf of the petitioner in the Supreme Court of the United States in a capital case brought in the State of Tennessee by the law firm O'Melveny & Myers LLP on behalf of a group of former prosecutors, including the Center's Executive Director.  On April 28, 2009, the Supreme Court ruled for the petitioner, vacating the judgment of the Court of Appeals and remanding the case to the District Court with instructions that the court give full consideration to the merits of the petitioner's Brady claim.

Read more about the guiding principles in the our litigation practice.

top of page