Amicus Curiae Brief — Louis Taylor, Petitioner v. Pima County, Arizona, et al.

Supreme Court briefJan 13, 2020

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No. 19-756

IN THE

Supreme Court of the United States

_____________

LOUIS TAYLOR,

Petitioner,

COUNTY OF PIMA; CITY OF TUCSON,

Respondents.

_____________

On Petition for a Writ of Certiorari to the

United States Court of Appeals

for the Ninth Circuit

_____________

BRIEF OF AMICUS CURIAE

AMERICAN BAR ASSOCIATION IN SUPPORT OF

PETITIONER

_____________

JUDY PERRY MARTINEZ

Counsel of Record

PRESIDENT

AMERICAN BAR

ASSOCIATION

321 N. Clark Street

Chicago, Illinois 60654

(312) 988-5000

AmicusBriefs@

americanbar.org

A. MARISA CHUN

CROWELL & MORING LLP

3 Embarcadero Ctr., 26th Flr.

San Francisco, CA 94111

(415) 986-2800

mchun@crowell.com

AMANDA SHAFER BERMAN

CROWELL & MORING LLP

1001 Pennsylvania Ave NW

Washington, D.C. 20004

Counsel for Amicus Curiae American Bar Association

QUESTIONS PRESENTED

1. Whether Heck v. Humphrey, 512 U.S. 477

(1994), applies to a former prisoner who lacked an

opportunity to challenge his conviction through

federal habeas while incarcerated.

2. Whether Heck bars a plaintiff from

recovering damages for his period of incarceration if

the plaintiff’s conviction has been vacated and he

has been released from prison pursuant to a plea of

“no contest” to time served.

iii

TABLE OF CONTENTS

QUESTIONS PRESENTED....................................... ii

TABLE OF AUTHORITIES ....................................... v

INTEREST OF AMICUS CURIAE ............................ 1

INTRODUCTION ....................................................... 5

FACTUAL BACKGROUND ....................................... 6

A. Taylor’s Unlawful Conviction and

Forty-Two Year Incarceration. ................... 6

B. Taylor’s Attempt to Recover Section

1983 Damages for His Unlawful

Incarceration. ............................................ 10

SUMMARY OF ARGUMENT .................................. 12

ARGUMENT ............................................................. 13

THIS COURT SHOULD GRANT

CERTIORARI TO CORRECT THE

NINTH CIRCUIT’S MISAPPLICATION

OF HECK V. HUMPHREY. ............................ 13

II.

TAYLOR’S PETITION PRESENTS A

QUESTION OF EXCEPTIONAL

IMPORTANCE. ............................................... 15

A. Conditioning the Release of a

Wrongfully Convicted Person on a

New Plea is Inconsistent with the

ABA’s Prosecutorial Guidance and

Undermines the Integrity of Our

Justice System. ......................................... 16

B. Pleading No Contest to Time Served

to Secure Release from a Wrongful

Conviction is Not Unique. ........................ 20

C. Coerced Pleas Lead to Serious LongTerm Consequences for the

Wrongfully Convicted. .............................. 23

CONCLUSION ......................................................... 26

TABLE OF AUTHORITIES

Page(s)

CASES

Blumberg v. Hewitt,

708 F. App’x 903 (9th Cir. 2017) .........................22

Brady v. Maryland,

373 U.S. 83 (1963)..................................................7

Buck v. Davis,

137 S. Ct. 759 (2017)..............................................9

Dennis v. City of Philadelphia,

379 F. Supp. 3d 420 (E.D. Pa. 2019) ...................23

Heck v. Humphrey,

512 U.S. 477 (1994)...................................... passim

Lyall v. City of Los Angeles,

807 F.3d 1178 (9th Cir. 2015)..............................10

MacDonald v. Musick,

425 F.2d 373 (9th Cir. 1970)................................19

Napue v. Illinois,

360 U.S. 264 (1959)................................................8

Olsen v. Correiro,

189 F.3d 52 (1st Cir. 1999) ............................18, 22

Poventud v. City of New York,

750 F.3d 121 (2d Cir. 2014) ...........................18, 22

Roberts v. City of Fairbanks,

No. 4:17-cv-0034-HRH, 2018 WL

5259453 (D. Alaska Oct. 22, 2018) ......................23

Spencer v. Kemna,

523 U.S. 1 (1998).................................. 6, 12, 13, 14

Taylor v. County of Pima,

913 F.3d 930 (9th Cir. 2019)...................... 6, 11, 18

Young v. U.S. ex rel. Vuitton et Fils S.A.,

481 U.S. 787 (1987)................................................5

CONSTITUTION

U.S. Const., amend VI ................................................9

U.S. Const., amend XIV ..........................................7, 8

STATUTES AND REGULATIONS

42 U.S.C. § 1983 ................................................ passim

24 C.F.R. § 5.855 .......................................................24

24 C.F.R. § 966.4 .......................................................24

Ariz. Rev. Stat. § 8-533 .............................................24

Ariz. Rev. Stat. § 15-1808 .........................................24

Ariz. Rev. Stat. § 16-101 ...........................................24

Ariz. Rev. Stat. § 21-201 ...........................................24

Ariz. Rev. Stat. § 23-1031 .........................................24

vii

OTHER AUTHORITIES

ABA Mission and Goals, available at

https://www.americanbar.org/about_the_

aba/ (last accessed Dec. 16, 2019) .........................1

ABA Model Rules of Professional Conduct,

Rule 3.8 ........................................................3, 4, 16

ABA Report to the House of Delegates

(Criminal Justice Sec.) (2008) .............................16

ABA Report with Resolution 112B

(Criminal Justice Sec.) (2017) .........................4, 18

ABA Standards for Criminal Justice,

Prosecution Function (4th ed. 2017)

3-4.3 ......................................................................16

3-8.1 ........................................................................4

3-8.3 ........................................................................4

60 Minutes: Arizona’s Pioneer Hotel Fire ReExamined, (CBS News television

broadcast Mar. 31, 2013), available at

https://www.youtube.com/watch?v=UK

ecVbSwKKw ...........................................................8

Radley Balko, Faulty Drug Field Tests

Bring False Confessions, Bad

Convictions, Wash. Post (Feb. 11, 2016) .............21

Radley Balko, Study: Sleep Deprivation

Linked to False Confessions, Wash. Post

(Feb. 9, 2016) .......................................................21

viii

Warren E. Burger, Introduction: The ABA

Standards for Criminal Justice, 12 Am.

Crim. L. Rev. 251, 252 (1974) ................................2

CBS News, Freed Prisoner Louis Taylor On

Pioneer Hotel Plea: “I had no choice.”

(CBS News television broadcast Apr. 3,

2013), available at

https://www.cbsnews.com/news/freedprisoner-louis-taylor-on-pioneer-hotelplea-i-had-no-choice/ ............................................10

Gabriel J. Chin & Richard W. Holmes, Jr.,

Effective Assistance of Counsel and the

Consequences of Guilty Pleas, 87 Cornell

L. Rev. 697, 700 (2002) ........................................23

Stephanie Clifford, Wrongly Convicted,

They Had to Choose: Freedom or

Restitution, N.Y. Times (Sept. 30, 2019),

https://www.nytimes.com/2019/09/30/us/

wrongful-convictions-civil-lawsuits.html ......19, 23

Will Dobbie et al., The Effect of Pre-Trial

Detention on Conviction, Future Crime,

and Employment: Evidence from

Randomly Assigned Judges, 108 Am.

Econ. Rev. 201, 213-214 (Feb. 2018) ...................21

Paul Heaton et al., The Downstream

Consequences of Misdemeanor Pretrial

Detention, 69 Stan. L. Rev. 711, 747

(2017) ....................................................................21

Rory K. Little, ABA’s Project to Revise the

Criminal Justice Standards for the

Prosecution and Defense Functions,

62 Hastings L.J. 1111, 1113 (2011).......................3

Martin Marcus, The Making of the ABA

Criminal Justice Standards: Forty Years

of Excellence, 23 Crim. Just. 10, 14

(Winter 2009) .....................................................2, 3

Kimberly Matas, Year of Freedom After 4

Decades Behind Bars Difficult for Louis

Taylor, Arizona Daily Star (May 11,

2014),

https://tucson.com/news/blogs/policebeat/year-of-freedom-after-decadesbehind-bars-difficult-forlouis/article_595cb493-574d-5d50-a3de06e3d1741ce4.html ..............................................25

Naional Registry of Exonerations, Univ. of

Mich. Law Sch.,

http;//www.law.umich.edu/specil/exoner

ation/Pages/Exonerations-in-the-UnitedStates-Map.aspx .................................................20

Michael Pinard, An Integrated Perspective

on the Collateral Consequences of

Criminal Convictions and Reentry Issues

Faced by Formerly Incarcerated

Individuals, 86 B.U. L. Rev. 623, 633

(2006) ....................................................................24

Elizabeth S. Vartkessian & Jared P. Tyler,

Legal and Social Exoneration: The

Consequences of Michael Toney’s

Wrongful Conviction, 75 Alb. L. Rev.

1467 (2012) ...........................................................25

INTEREST OF AMICUS CURIAE 1

The American Bar Association is the largest

voluntary association of attorneys and legal

professionals in the world. Membership is voluntary

and includes attorneys in law firms, government

agencies including prosecutorial and public defender

offices, corporate law departments, and public

interest organizations, as well as judges, legislators,

and law professors. The ABA’s mission is “[t]o serve

equally our members, our profession and the public

by defending liberty and delivering justice as the

national representative of the legal profession.” 2

This case presents one of the increasing number

of instances in which a prosecutor’s office has

conditioned the release of an unlawfully convicted

defendant on his agreement to a new plea—rather

than vacating the prior conviction before bringing

any new charges. The ABA has a strong interest in

this Court’s consideration of whether such a practice

bars the recovery of damages under 42 U.S.C.

1 Timely notice of intent to file this brief was provided and all

parties have consented to its filing. Pursuant to Supreme

Court Rule 37.6, no part of this brief was authored by counsel

for any party, and no person or entity has made a monetary

contribution to its preparation or submission other than the

amicus curiae, its members, or its counsel.

Neither this brief nor the decision to file it should be

interpreted as reflecting the views of any judicial member of

the American Bar Association. No member of the ABA Judicial

Division Council participated in this brief’s preparation or in

adopting or endorsing its content.

2See

ABA

Mission

and

Goals,

https://www.americanbar.org/about_the_aba/

Dec. 16, 2019).

available

(last accessed

§ 1983, as some Circuits have held. Because the

questions presented here have serious implications

with respect to the duty of prosecutors to seek justice

and the safeguarding of a key remedy to protect

rights guaranteed by the Constitution, the ABA

respectfully submits this brief.

The ABA has long played a role in setting

standards for criminal prosecutions, and the ABA

Standards for Criminal Justice represent a critical

aspect of the ABA’s efforts to improve the criminal

justice system. In 1964, the ABA created the

Criminal Justice Standards Project under the

leadership of then-ABA president Lewis F. Powell,

Jr. and, a decade later, Chief Justice Warren E.

Burger described the Standards as “a balanced,

practical work designed to walk the fine line

between the protection of society and the protection

of the constitutional rights of accused individuals.”

Warren E. Burger, Introduction: The ABA Standards

for Criminal Justice, 12 Am. Crim. L. Rev. 251, 252

(1974). 3 Since then, the ABA has revised the

Standards numerous times through the work of task

forces consisting of judges, prosecutors, defense

lawyers, academics, and lawyers with federal, state,

and local perspectives. By 2009, state and federal

3 See Martin Marcus, The Making of the ABA Criminal Justice

Standards: Forty Years of Excellence, 23 Crim. Just. 10, 14

(Winter 2009) (“From the beginning of the project, the [ABA]

Standards have reflected a consensus of the views of

representatives of all segments of the criminal justice

system.”).

courts had cited to the ABA Standards more than

3100 times. 4

These Standards, as well as some of the ABA

Model Rules of Professional Conduct, have promoted

measures to avoid or redress wrongful convictions. 5

For example, in 2008, the ABA amended Rule 3.8 of

the Model Rules of Professional Conduct to codify a

prosecutor’s ongoing responsibility to investigate

new exculpatory evidence and to remedy wrongful

convictions. 6

The ABA’s Ad Hoc Innocence

Committee also proposed systematic reforms to

address wrongful convictions, covering, inter alia,

“prosecutorial practices” and “compensation for the

wrongfully convicted” and recommended that all

jurisdictions enact laws to ensure adequate

compensation for the wrongfully convicted. 7

The ABA’s latest edition of its Criminal Justice

Standards for the Prosecution Function provides

further guidance regarding a prosecutor’s duties to

the wrongfully convicted: “The prosecutor should not

defend a conviction if the prosecutor believes the

4 Id. at 11.

5 For more on this Court’s reliance on the ABA Standards in

fashioning and applying constitutional criminal litigation rules,

see Rory K. Little, ABA’s Project to Revise the Criminal Justice

Standards for the Prosecution and Defense Functions, 62

Hastings L.J. 1111, 1113 (2011).

6 Model Rules of Prof’’l Conduct, Rule 3.8(g)–(h) (Am. Bar Ass’n.

2008).

7 See Am. Bar Ass’n, Achieving Justice: Freeing the Innocent,

Convicting the Guilty, Report of the ABA Criminal Justice

Section’s Ad Hoc Innocence Committee to Ensure the Integrity of

the Criminal Process (Paul C. Giannelli & Myrna S. Raeder

eds.), reprinted in 37 Sw. L. Rev. 763, 766, 774-87 (2008).

defendant is innocent or was wrongfully convicted,

or that a miscarriage of justice associated with the

conviction has occurred.”

ABA Standards for

Criminal Justice, Prosecution Function 3.8-1 (4th ed.

2017)

(hereinafter

“Prosecution

Function

Standards”). The Standards also state that “[i]f a

prosecutor learns of credible and material

information creating a reasonable likelihood that a

defendant was wrongfully convicted or sentenced or

is actually innocent, the prosecutor should comply

with ABA Model Rules of Professional Conduct 3.8(g)

and (h).” Prosecution Function Standard 3.8-3.

Most recently, the ABA House of Delegates

adopted a resolution which recognized that, as part

of that obligation, a prosecutor should not condition

relief for a wrongful conviction upon “an Alford plea,

a guilty plea, or a no contest plea by the defendant to

the original or any other charge.” 8 ABA Report with

Resolution 112B (Criminal Justice Section) (2017)

(hereinafter “Resolution 112B”) at 1, available at

https://www.americanbar.org/content/dam/aba/direct

ories/policy/midyear-2017/2017-midyear-112b.pdf. If

a prosecutor believes new charges are supported by

the evidence, she may pursue such charges and

begin plea negotiations anew—i.e., only after the

prior conviction has been vacated and the defendant

released. See id. The prosecution’s conditioning of a

plea in exchange for its support for a post-conviction

remedy raises a host of concerns, including the risk

An “Alford plea” is a guilty plea in which a defendant

maintains his innocence but admits that the prosecution's

evidence would likely result in a guilty verdict if the case were

brought to trial.

that such pleas are likely to be, or appear to be,

coerced, and also are generally unfair to the

incarcerated defendant.

INTRODUCTION

The responsibility of a public prosecutor

differs from that of the usual advocate; his

duty is to seek justice, not merely to convict.

Young v. U.S. ex rel. Vuitton et Fils S.A., 481 U.S.

787, 803 (1987) (quoting the ABA Model Code of

Professional Responsibility, Ethical Consideration

7-13 of Canon 7 (1982)).

This Court has the opportunity to resolve a

deepening circuit split, and to discourage a troubling

but increasingly frequent prosecutorial practice:

conditioning the release of a prisoner whose

conviction the prosecutor’s office acknowledges was

unlawful upon the prisoner’s agreement to a new

guilty, no-contest, or Alford plea.

The ABA’s

Standards and prosecutorial best practices

discourage such conduct, but decisions interpreting

this Court’s decision in Heck v. Humphrey, 512 U.S.

477 (1994) as holding that new pleas bar recovery of

damages for unlawful incarceration under 42 U.S.C.

§ 1983 have encouraged the practice. This is so

because it insulates the local jurisdiction from

potentially significant civil damages awards.

Precluding recovery when defendants have no

practical way to challenge their convictions while

incarcerated is wrong. And that is always the case

where, as here, a plea was entered in exchange for

time served. Failing to resolve this important legal

question in Petitioner’s favor has substantial,

practical consequences for other similarly-situated

persons.

Even the Ninth Circuit majority

characterized its decision as “unfortunate,” 9

compelled by the caselaw but fundamentally unjust.

Allowing that decision to stand would send a

message to prosecutors’ offices around the country

that their duty to seek justice can give way to

financial considerations. Instead, this Court should

grant certiorari and hold, as five Justices agreed in

Spencer v. Kemna, 523 U.S. 1 (1998), that Heck does

not bar § 1983 relief for a former prisoner who could

not have challenged his conviction while

incarcerated.

Unfortunately, when local jurisdictions confront

cases in which fiscal and ethical considerations go

head to head, fiscal considerations sometimes

prevail. By granting certiorari and holding that

Heck does not bar § 1983 claims by former prisoners

who had no opportunity to pursue their claims under

the habeas statute, this Court would not only resolve

an intractable circuit split, but discourage

prosecutors from trying to extract such pleas as a

condition of release.

FACTUAL BACKGROUND

Taylor’s Unlawful Conviction and FortyTwo Year Incarceration.

Petitioner’s brief describes his unlawful

conviction and incarceration. The ABA highlights

below the role prosecutorial misconduct played.

9 Taylor v. County of Pima, 913 F.3d 930, 936 (9th Cir.), reh’g

denied, 933 F.3d 1191 (9th Cir. 2019).

The prosecution’s case against Louis Taylor—who

was only 16 years old at the time of Tucson’s Pioneer

Hotel fire in 1972—was predicated in large part on

Pima County’s expert testimony that the fire was

caused by arson and an accelerant had been used,

and testimony from an inmate that, while in jail,

Taylor had admitted to starting the fire using lighter

fluid. 10 Upon reexamination forty years later, that

key evidence was shown to be the product of highly

troubling prosecutorial decisions.

First, contrary to Brady v. Maryland, 373 U.S. 83

(1963), the prosecution had suppressed an expert

report stating that no accelerant had been used in

connection with the fire—thereby contradicting the

prosecution’s theory of the case and the testimony of

its two primary witnesses, the “expert” fire

investigator and the jailhouse informant. 11 See id.,

373 U.S. at 87-88 (holding that prosecution’s failure

to turn over exculpatory evidence to defendant

“where the evidence is material either to guilt or to

punishment” violates the Due Process Clause of the

Fourteenth

Amendment);

accord

Prosecution

Function Standard 3.5-4(a) (stating that prosecutors

should “diligently seek to identify” exculpatory

evidence and disclose it to the defense, rather than

concealing it).

Second, the brother of the now-deceased jailhouse

informant testified that police had induced his

brother to fabricate Taylor’s “confession” to arson in

10 See Appellants’ Excerpts of Record from Ninth Circuit (“ER”),

No. 17-16980, Dkt. 12, at 062-065, 070, 089-090.

11 See ER 070, 077-078, 093-095.

exchange for a plea deal. 12 The solicitation and use

of that testimony was improper. See Napue v.

Illinois, 360 U.S. 264, 268 (1959) (holding that the

knowing use of false testimony by a prosecutor in a

criminal case violates the Due Process Clause of

the Fourteenth Amendment); Prosecution Function

Standard 3-4.1(b) (“A prosecutor should not use

illegal or unethical means to obtain evidence or

information.”).

Third, the prosecution’s expert witness, a fire

prevention officer, admitted in a 2012 deposition

that he had reached “preliminary conclusions,” after

only a quick walk-through of the hotel, that the fire

was arson and “the culprit was probably black and

. . . probably 18” because:

Blacks at that point, their background was

the use of fire for beneficial purposes . . .

they were used to clearing lands and doing

cleanup work and things like that and fire

was a tool . . . And if they get mad at

somebody, the first thing they do is use

something they’re comfortable with. Fire

was one of them. 13

12 See ER 071-073 (also detailing prior statements made by that

witness himself that the State’s investigator had threatened to

charge him with crimes, if he did not testify that Taylor had

confessed to starting the fire).

13 60 Minutes: Arizona’s Pioneer Hotel Fire Re-Examined (CBS

News television broadcast Mar. 31, 2013), available at

https://www.youtube.com/watch?v=UKecVbSwKKw

(transcribed excerpt from deposition of C. Holmes); see also ER

227 (referencing C. Holmes’ comments regarding “black boys”).

Cf. Buck v. Davis, 137 S. Ct. 759, 775-776, 780 (2017)

(defense counsel’s presentation of expert testimony

that defendant was more likely to act violently in the

future because he was black violated Sixth

Amendment right to effective assistance of counsel).

Fourth, the evidence of arson relied on by Pima

County’s expert has since been discredited. In 2006,

an Arson Review Committee comprised of renowned

fire science experts concluded that there was no

scientific basis to classify the Pioneer Hotel fire as

an arson. 14

Even the report commissioned in

response by the Pima County Attorney from the City

of Tucson Fire Department concluded that “a fire

cause determination is not possible.” 15

Given these developments, the County conceded

that new advances in fire science investigation

constituted “newly discovered evidence” that would

warrant a new trial for Taylor and, as such, the

County would be unable to proceed with a retrial

and Taylor’s prior convictions would not stand. 16

But the County nonetheless insisted that Taylor

plead no contest to 28 counts of felony murder, with

a sentence of time served. 17

Taylor, who had

professed his innocence for four decades, felt he “had

no choice” but to agree: after forty-two years, the

14 See ER 076-086.

15 ER 123.

16 ER 123-124, 156.

17 See ER 124-125.

prospect of spending “another minute, another hour,

another decade” in prison was unbearable. 18

Taylor’s Attempt to Recover Section 1983

Damages for His Unlawful Incarceration.

Upon release, Taylor sought to recover damages

under 42 U.S.C. § 1983 from Pima County and the

City of Tucson for the violation of his constitutional

rights, which had led to 42 years of wrongful

imprisonment. 19 While initially holding that Heck

did not bar a § 1983 claim by a released prisoner

who could not have challenged his conviction via a

habeas petition, 20 the district court later granted the

County’s motion for reconsideration and held that

Taylor was barred from recovering damages. 21

The Ninth Circuit affirmed. In so doing, the

majority made clear that it did not believe its

decision to be just, but rather compelled by this

Court’s precedent:

See Freed Prisoner Louis Taylor on Pioneer Hotel Plea: “I

had no choice” (CBS News television broadcast Apr. 3, 2013),

available at https://www.cbsnews.com/news/freed-prisonerlouis-taylor-on-pioneer-hotel-plea-i-had-no-choice/.

19 See ER 002-024.

20 See Pet. App. 91a-93a.

21 See Pet. App. 54a-66a & 68a-71a.

The district court followed

Lyall v. City of Los Angeles, 807 F.3d 1178 (9th Cir. 2015), an

intervening Ninth Circuit decision which adopted a contrary

interpretation of Heck. Lyall held that former prisoners who

could not bring a habeas suit while incarcerated could

thereafter only challenge the “loss of good-time credits,

revocation of parole or similar matters,” but not “their

underlying convictions.” Id. at 1191-92 (internal citation

omitted).

We take no pleasure in reaching this

unfortunate result, given Taylor’s serious

allegations of unconstitutional actions by the

County. But we cannot disregard the

limitations imposed by Congress and the

Supreme Court . . . .

Taylor v. County of Pima, 913 F.3d 930, 936 (9th

Cir.).

The dissent disagreed.

It highlighted the

fundamental injustice of the majority’s holding that

Taylor’s new plea blocked recovery, given that it

“was the product of his desperate circumstances. In

his 60’s, he faced acceptance of the plea offer or

waiting years for a habeas petition to work its way

through the court.” Taylor, 913 F.3d at 940

(Schroeder, J., dissenting). The dissent laid

responsibility for the unjust plea squarely on the

prosecutor’s office, characterizing it as the result of

“coercive tactics” which perpetuated “an abuse of

power” that § 1983 should address. Id. The dissent

closed by reminding the majority of the role

prosecutors play in maintaining the integrity of our

justice system:

When prosecutors betray their solemn

obligations and abuse the immense power

they hold, the fairness of our entire system of

justice is called into doubt and public

confidence in it is undermined.

Id. at 940 (quoting Silva v. Brown, 416 F.3d 980, 991

(9th Cir. 2005)).

SUMMARY OF ARGUMENT

This Court should grant Taylor’s petition for

certiorari for important legal and practical reasons.

Correcting the Ninth Circuit’s misapplication of

Heck v. Humphrey, 512 U.S. 477 (1994), by

confirming that Heck only applies where the person

seeking relief under § 1983 remains incarcerated or

could have sought habeas relief while incarcerated—

as five Justices agreed in Spencer v. Kemna, see 523

U.S. at 19-21 & 25 n.8—would provide much-needed

guidance to the lower courts. The Circuits have split

on the circumstances in which Heck bars a § 1983

suit, and their decisions, and those of the lower

courts, have been increasingly confused. Deciding

that issue would not only provide much-needed

guidance to the lower courts, but also to states,

municipalities, and prosecutors’ offices when they

are deciding how to proceed after concluding that a

prior conviction likely was unlawful.

The legal question presented by the petition also

has important practical consequences.

Some

prosecutors’ offices have required that unlawfully

convicted, but still incarcerated defendants enter a

new guilty, no-contest, or Alford plea to secure their

immediate release. That practice is at odds with

several of the ABA’s prosecutorial standards, rules,

and resolutions, and the ABA believes it undermines

public faith in, and the very integrity of, our criminal

justice system. By granting certiorari and holding

that Heck does not bar § 1983 claims in such

circumstances, this Court would discourage that

troubling prosecutorial practice.

ARGUMENT

THIS COURT SHOULD GRANT

CERTIORARI TO CORRECT THE NINTH

CIRCUIT’S MISAPPLICATION OF HECK

V. HUMPHREY.

The ABA urges the Court to grant certiorari to

resolve the Circuit split over whether Heck bars a

criminal defendant in Taylor’s situation from

recovering damages under 42 U.S.C. § 1983 after his

conviction has been vacated and he has been

released. This Court should hold that it does not.

Heck held that, to recover damages for an

allegedly

unconstitutional

conviction

imprisonment, a § 1983 plaintiff must show that the

conviction or sentence has been reversed, expunged,

or declared invalid in some way. Heck, 512 U.S. at

486-87. The question over which courts have split is

whether Heck applies to a prisoner who is not still in

custody and lacked any opportunity to seek habeas

relief while in custody. It should not.

This would be consistent with the narrower view

of Heck outlined by the concurring opinion in

Spencer v. Kemna, 523 U.S. 1 (1998), in which

Justice Souter, writing for three other justices,

agreed that a habeas petition filed by a released

prisoner challenging his parole revocation was moot,

but hinged that conclusion on his understanding

that Heck would not bar a released prisoner from

bringing a § 1983 claim. See id., 523 U.S. at 19-21.

He emphasized that the petitioner in Heck was “an

inmate” still “in custody,” and therefore required to

exhaust the state appeals process and to secure a

favorable termination of the incarceration either

through that process or federal habeas before

seeking § 1983 damages. Id. at 19-20. Justice

Souter explained that it would be “a patent anomaly”

to apply the favorable termination requirement of

Heck to a plaintiff not in custody given that such an

interpretation would make a person sentenced to a

short term, or convicted but not imprisoned,

chronically ineligible for relief. Id. at 20. He

clarified:

[A] former prisoner no longer “in custody”

may bring a §1983 action establishing the

unconstitutionality of a conviction or

confinement without being bound to satisfy

a favorable termination requirement that it

would be impossible as a matter of law for

him to satisfy.

Id. at 21.

Justice Stevens agreed with that

proposition in his dissent. See id. at 24 n.8 (“Given

the Court’s holding that petitioner does not have a

remedy under the habeas statute, it is perfectly

clear, as Justice Souter explains, that he may bring

an action under 42 U.S.C. § 1983.”).

Adopting this view of Heck would result in a

uniform, easy-to-understand rule that the lower

courts can readily apply. And it would resolve

Taylor’s case in a manner that avoids the unjust

result reached below. Because Taylor is no longer in

custody, he may challenge his incarceration through

§ 1983, whether or not his original conviction is

deemed to have been “favorably terminated” in light

of its vacatur. 22 ER 137.

Importantly, this Court’s holding that Heck

applies only where the person seeking relief under

§ 1983 remains imprisoned would also encourage

prosecutors to follow the ABA’s Prosecutorial

Standards and ABA Resolution 112B. With the

scope of the Heck bar clearly confined, state and local

jurisdictions no longer would have a financial

incentive to extract new no-contest or guilty pleas,

before agreeing to support a motion to vacate an

unlawful conviction. A decision from this Court on

whether Heck applies to a situation like Taylor’s will

not only provide guidance to lower courts, but also to

states, local jurisdictions, and prosecutors.

II.

TAYLOR’S PETITION PRESENTS A

QUESTION OF EXCEPTIONAL

IMPORTANCE.

The issue presented here—whether a state or

local jurisdiction may avoid paying civil damages by

conditioning the release of a person whose conviction

has been shown to be unlawful on a new plea and

thus insulating themselves under a broad (and

incorrect) reading of Heck—is of exceptional

importance. It is critical to the integrity of our

prosecutorial system that pleas be free from

coercion, particularly where a defendant is

22 As Taylor explains, it is highly doubtful whether Heck would

bar recovery in the circumstances here, even if Heck applied to

former prisoners generally, and that question is itself the

subject of a significant split among the lower courts which

merits this Court’s review. See Pet. 21-26, 29-32.

incarcerated pursuant to a conviction that the

prosecutor’s office itself acknowledges can no longer

be sustained. Demanding that the incarcerated

defendant enter a new guilty, no-contest, or Alford

plea in such circumstances in order to secure release

is at odds with the guidance of the ABA’s

prosecutorial standards, rules, and resolutions,

undermines the integrity of our criminal justice

system, and has long-term negative consequences for

persons who, like Taylor, accept such pleas out of

desperation to secure their release.

Conditioning the Release of a Wrongfully

Convicted Person on a New Plea is

Inconsistent

with

the

ABA’s

Prosecutorial Guidance and Undermines

the Integrity of Our Justice System.

ABA Model Rule 3.8(h) directs a prosecutor to

remedy a wrongful conviction when she “knows of

clear and convincing evidence establishing that [the]

defendant . . . was convicted of an offense that the

defendant did not commit.” 23

And Prosecution

Function Standard 3-4.3(a) suggests that “[a]

prosecutor should seek or file criminal charges only

if the prosecutor believes that the charges are

supported by probable cause [and] that admissible

The clear and convincing standard represents the bare

minimum expected of prosecutors presented with evidence

indicating a likely wrongful conviction. See Am. Bar Ass’n,

Report to the House of Delegates (Criminal Justice Section)

(2008) (accompanying proposed Model Rules 3.8(g) and (h) and

expressing “the expectation that, as ministers of justice,

prosecutors routinely will and should go beyond the

disciplinary minimum.”)

evidence will be sufficient to support a conviction

beyond a reasonable doubt.” These standards are

well-accepted norms, reflecting decades of study and

deliberation by the ABA. Together, they guide a

prosecutor’s office that knows of a wrongful, or a

likely wrongful, conviction to act to vacate the

conviction—without conditioning such action and the

defendant’s release on an agreement to a new guilty,

no-contest, or Alford plea.

In 2017, the ABA House of Delegates reaffirmed

that guidance by passing Resolution 112B:

When the prosecutor’s office supports a

defendant’s motion to vacate a conviction

based on the office’s doubts about the

defendant’s guilt . . . or about the lawfulness

of the defendant’s conviction, the office should

not condition its support for the motion on an

Alford plea, a guilty plea, or a no contest plea

by the defendant to the original or any other

charge.

Nevertheless, the office may

independently pursue any charge it believes

is supported by admissible evidence sufficient

to prove guilt beyond reasonable doubt, and

may seek to resolve the matter with an Alford

plea, no contest plea, or guilty plea to that

charge.

Resolution 112B, supra p.4, at 1. In its Report

supporting the resolution, the ABA commended the

increasing number of prosecutors’ offices that had

convened conviction integrity units and reviewed

past convictions, but explained that it remained

concerned about occasions in which prosecutors with

serious doubts about a convicted defendant’s guilt

had conditioned the office’s support for the release of

such a defendant upon a new guilty, no-contest, or

Alford plea. 24 This is because the prosecution’s

conditioning of a plea in exchange for its support for

a post-conviction remedy raises the risk that such

pleas are likely to be, or appear to be, coerced, and

are unfair to the defendant. 25

However, several Circuits, including the Ninth,

have now effectively endorsed this practice by

holding that the later convictions bar recovery of

damages under 42 U.S.C. § 1983. See Taylor, 913

F.3d at 936; Olsen v. Correiro, 189 F.3d 52, 55 (1st

Cir. 1999) (defendant whose murder conviction was

overturned, but who then pled guilty to manslaughter in exchange for a sentence of time served,

could not recover under § 1983); Poventud v. City of

New York, 750 F.3d 121 (2d Cir. 2014) (defendant

who pled guilty to lesser crime after prior conviction

was vacated could only recover for years served

beyond those sanctioned by new sentence). It is all

the more troubling since this practice is at odds with

accepted standards for prosecutorial conduct.

Extracting pleas from defendants who have

essentially been exonerated also undermines public

confidence in our criminal justice system. The public

appearance will often be that the prosecution

insisted on the guilty plea to save face or to prevent

the defendant from pursuing civil remedies—not

that the defendant is genuinely guilty of the new

24 ABA Report with Resolution 112B (Criminal Justice Section)

(2017) at 2.

25 Id. at 3.

charge. 26 Indeed, avoiding liability for civil damages

is often the motivating factor behind the growing

practice of securing guilty, no-contest, or Alford

pleas in exchange for the immediate release of a

wrongfully convicted defendant. 27

Extracting a plea by withholding consent to

vacatur of a prior unlawful conviction and release

also carries a serious risk that it is, in fact,

predicated on a false admission of guilt. A person

facing jail time may accept a guilty plea to avoid or

secure release from incarceration—even if he is

innocent. And as Taylor has explained, a person

who has wrongly lost decades of his life in jail will

feel particularly compelled to take any opportunity

to be released, even if it means pleading no contest

or guilty to a crime for which he has steadfastly

maintained his innocence. 28

26 As the Ninth Circuit recognized in MacDonald v. Musick, 425

F.2d 373, 375 (9th Cir. 1970): “It is no part of the proper duty of

a prosecutor to use a criminal prosecution to forestall a civil

proceeding by the defendant . . ., even where the civil case

arises from the events that are also the basis for the criminal

charge.”

27 See, e.g., Stephanie Clifford, Wrongly Convicted, They Had to

Choose: Freedom or Restitution, N.Y. Times (Sept. 30, 2019),

https://www.nytimes.com/2019/09/30/us/wrongful-convictionscivil-lawsuits.html (discussing financial issues faced by

jurisdictions as a result of past exonerations, and providing

examples where prosecutors sought new pleas to avoid such

liability).

28 See “Freed Prisoner,” supra n.18.

Pleading No Contest to Time Served to

Secure Release from a Wrongful

Conviction is Not Unique.

Taylor’s predicament was not unique. Numerous

individuals have been exonerated or had their

convictions proven unlawful after years of

imprisonment, and an increasing number have then

had prosecutors require that they plead guilty or no

contest to new charges, with a sentence of time

served, in order to secure their immediate release.

Exonerations are increasingly common.

The

National Registry of Exonerations lists 2,522

exonerations since 1989. 29 That number, which does

not include cases like Taylor’s where the defendant

agreed to a new plea to secure release, amounts to

over 22,315 years of wrongful imprisonment, roughly

two-thirds of it served by people of color. 30 And

while the average length of incarceration before

release is just under nine years, more than a few

29 National Registry of Exonerations, Univ. of Mich. Law Sch.,

http://www.law.umich.edu/special/exoneration/Pages/Exonerati

ons-in-the-United-States-Map.aspx (last visited Dec. 6, 2019).

A project of the University of California, University of Michigan

Law School, and Michigan State University College of Law, the

Registry seeks to “provide comprehensive information on

exonerations of innocent criminal defendants in order to

prevent future false convictions” by, inter alia, providing data

on all known exonerations since 1989 and studying the factors

leading

wrongful

convictions.

See

https://www.law.umich.edu/special/exoneration/Pages/mission.a

spx.

30 Id.

individuals have spent decades incarcerated for a

crime they did not commit. 31

Innocent people plead guilty or no contest to

crimes for a variety of reasons, 32 ranging from being

falsely told that substances found on their persons

tested

positive

for

drugs, 33

extended

interrogations.

But perhaps the most powerful

motivator for a false guilty plea is the desire to get

out of jail. The threat of continued incarceration

means that a defendant is significantly more likely

to plead guilty, whether or not he is in fact guilty. 35

31 See id.

National

Registry

Exonerations,

https://www.law.umich.edu/special/exoneration/Documents/NR

E.Guilty.Plea.Article1.pdf.

33 In Harris County, Texas, hundreds of persons who had pled

guilty to drug possession were later exonerated by lab tests

showing that the substance at issue was not drugs. See Radley

Balko, Faulty Drug Field Tests Bring False Confessions, Bad

Convictions, Wash. Post (Feb. 11, 2016). See also National

Registry of Exonerations, https://www.law.umich.edu/special/

exoneration/Documents/Drug_Cases_2016.pdf. Harris County

is only unique in that it voluntarily reviewed past convictions;

few prosecutors’ offices have shown a similar commitment to

redressing

past

mistakes.

See

id.,

https://www.law.umich.edu/special/exoneration/Pages/Convictio

n-Integrity-Units.aspx.

34 See Radley Balko, Study: Sleep Deprivation Linked to False

Confessions, Wash. Post (Feb. 9, 2016).

See Paul Heaton et al., The Downstream Consequences of

Misdemeanor Pretrial Detention, 69 Stan. L. Rev. 711, 747

(2017) (“detainees plead[ ] at a 25% higher rate than similarly

situated releasees”); Will Dobbie et al., The Effect of Pre-Trial

Detention on Conviction, Future Crime, and Employment:

Evidence from Randomly Assigned Judges, 108 Am. Econ. Rev.

201, 213-14 (Feb. 2018) (sample study of detainees in two

(continued...)

Especially for a wrongfully incarcerated person who

has spent years or decades in prison, the prospect of

immediate relief is understandably irresistible,

particularly when the choice is to wait additional

months or even years to secure full exoneration

through ongoing or new proceedings. And many may

not have even made an informed choice – not

realizing that, by accepting a deal granting

immediate freedom, they might be giving up the

prospect of obtaining monetary relief for the

unlawful conviction and/or incarceration.

The growing body of case law addressing the legal

impact of such pleas in a wide variety of

circumstances shows that this is a very real problem,

and that prosecutors have used the desire of

incarcerated defendants for freedom to extract new

pleas even after the prior conviction has been shown

to be unlawful. See, e.g., Blumberg v. Hewitt, 708 F.

App’x 903, 904 (9th Cir. 2017) (person convicted of

murder and granted habeas relief pled guilty and

was sentenced to time served); Poventud v. City of

New York, 750 F.3d 121, 135-36 (2d Cir. 2014)

(person whose conviction was vacated accepted

State’s offer to plead guilty to a lesser charge in

exchange for immediate release); Olsen v. Correiro,

189 F.3d 52, 55 (1st Cir. 1999) (person secured

vacatur of murder conviction based on investigating

officers’ failure to disclose evidence, but pled nolo

contendere to lesser charge of manslaughter with the

State’s agreement to recommend time served);

________________________

(continued...)

counties found that 44% of initially detained defendants pled

guilty compared to only 20.7% of released defendants).

Dennis v. City of Philadelphia, 379 F. Supp. 3d 420,

423-24 (E.D. Pa. 2019) (person convicted for murder

was granted habeas and then offered no contest

plea); Roberts v. City of Fairbanks, No. 4:17-cv-0034HRH, 2018 WL 5259453 (D. Alaska Oct. 22, 2018)

(dismissing § 1983 claims of four persons convicted

of murder who were released after presenting

evidence of innocence due to stipulated agreement

that vacated convictions had been validly entered).

Such pleas insulate jurisdictions from paying civil

damages for wrongful incarceration. 36 But pleas

extracted from defendants who have essentially been

exonerated—and the legal impact of such pleas,

including on § 1983 claims—require particular

scrutiny given that we now know that prosecutors

can, and do, secure guilty, no-contest, and Alford

pleas from the innocent.

Coerced Pleas Lead to Serious LongTerm Consequences for the Wrongfully

Convicted.

Plea deals such as the one at issue here also have

devastating, long-term effects on those who enter

into them—impacts that an incarcerated person may

not fully comprehend or properly weigh when facing

the prospect of more years behind bars. In many

states, a felony guilty plea will prevent the

defendant from voting, finding employment, and

securing housing upon release. 37 For example, in

See Clifford, Wrongly Convicted, supra n.27.

See Gabriel J. Chin & Richard W. Holmes, Jr., Effective

Assistance of Counsel and the Consequences of Guilty Pleas, 87

Cornell L. Rev. 697, 700 (2002) (documenting the collateral

(continued...)

Arizona, where Taylor was convicted, a felony

conviction deprives a released defendant of his right

to serve on a jury 38 and to vote, 39 and prevents him

from receiving worker’s compensation benefits,

getting certain tuition waivers at state schools, and

potentially retaining parental rights. 40 In addition

to these state law consequences, federal law requires

that convicted felons be evicted from public

housing 41 and authorizes housing authorities to deny

later applications. 42 These are just the tip of the

iceberg. Indeed, the National Inventory of Collateral

Consequences of Conviction hosts a database of more

than 44,605 state and federal consequences to guilty

pleas. 43 Taylor has suffered many of these

consequences firsthand. His no contest plea in 2013

rendered him ineligible for transitional housing and

________________________

(continued...)

consequences of guilty pleas); Michael Pinard, An Integrated

Perspective on the Collateral Consequences of Criminal

Convictions and Reentry Issues Faced by Formerly Incarcerated

Individuals, 86 B.U. L. Rev. 623, 633 (2006) (analyzing the

impact of collateral consequences on former prisoners’ ability to

“move on to productive, law-abiding lives” after release).

38 Ariz. Rev. Stat. § 21-201.

39 Ariz. Rev. Stat. § 16-101.

40 Ariz. Rev. Stat. §§ 23-1031, 15-1808, 8-533.

41 24 C.F.R. § 966.4.

42 24 C.F.R. § 5.855.

43 National Inventory of Collateral Consequences of Conviction,

https://niccc.csgjusticecenter.org/database/results /?page=1 (last

visited Dec. 6, 2019).

other services, and made it difficult for him to secure

housing on his own. 44

Being labeled as a felon also has negative

psychological and social consequences, making it

difficult for a former prisoner to reenter society

successfully. 45 Individuals like Taylor, who plead no

contest to new charges in order to secure their

release, are not even listed in the National Registry

of Exonerations, leaving them stigmatized despite

evidence of innocence. 46

In sum, when prosecutors acknowledge that a

prior conviction cannot stand, yet condition the

person’s release on the entry of a new plea, such

defendants

often

face

long-term

negative

consequences which they may not fully comprehend

when they accept such a deal.

Those unjust

consequences, as well as the broader harm to the

44 Kimberly Matas, Year of Freedom After 4 Decades Behind

Bars Difficult for Louis Taylor, Arizona Daily Star, May 11,

2014, online at https://tucson.com/news/blogs/police-beat/yearof-freedom-after-decades-behind-bars-difficult-forlouis/article_595cb493-574d-5d50-a3de-06e3d1741ce4.html.

See Elizabeth S. Vartkessian & Jared P. Tyler, Legal and

Social Exoneration: The Consequences of Michael Toney’s

Wrongful Conviction, 75 Alb. L. Rev. 1467, 1491 (2012)

(comparing the emotional and social consequences of an

exoneration characterized by the prosecutor’s office as

indicating innocence with one where the prosecutor continued

to insist the defendant was guilty).

See

National

Registry

Exonerations,

https://www.law.umich.edu/special/exoneration/Pages/glossary.

aspx (defining “exoneration” as being “officially cleared” by a

pardon, acquittal, or dismissal of “all charges related to the

crime for which the person was originally convicted.”).

integrity of our criminal justice system caused by

such conduct, are contrary to the ABA’s guidance to

prosecutors on this important issue. This Court

should grant certiorari to review the legal effect of

this practice on a formerly incarcerated person’s

ability to vindicate his rights under 42 U.S.C.

§ 1983.

CONCLUSION

For the foregoing reasons, and those stated by

Petitioner, the Court should grant the Petition.

Respectfully submitted,

JUDY PERRY MARTINEZ

Counsel of Record

PRESIDENT

AMERICAN BAR

ASSOCIATION

321 N. Clark Street

Chicago, Illinois 60654

(312) 988-5000

AmicusBriefs@

americanbar.org

A. MARISA CHUN

CROWELL & MORING LLP

3 Embarcadero Ctr., 26th Flr.

San Francisco, CA 94111

(415) 986-2800

mchun@crowell.com

AMANDA SHAFER BERMAN

CROWELL & MORING LLP

1001 Pennsylvania Ave NW

Washington, D.C. 20004

Counsel for Amicus Curiae American Bar Association

January 13, 2020

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