State of Alabama v. Shelton, 122 S.Ct. 1764 (2002) Supreme Court of the United States, on Writ of Certiorari to the Supreme Court of Alabama. Thomas F. Liotti, counsel of record for the National Association of Criminal Defense Lawyers (NACDL) and co-author of the brief with Professor Steven Duke, Yale Law School. NACDL to File Amicus Brief in U.S. Supreme Court, the Attorney of Nassau County, July, 2001 at 4. “The National Association of Criminal Defense Lawyers has asked Garden City attorney, Thomas F. Liotti to represent them in an amicus curiae brief to be filed in the Supreme Court of the United States in the case of Alabama v. Shelton where certiorari has already been granted. The Shelton case will determine the right of poor defendants to the assignment of counsel in misdemeanor and violation cases even where jail may not be imposed. Liotti will be joined by Professor Steven Duke of the Yale Law School, who will act as co-counsel and author on the brief.” Argued in the Supreme Court of the United States on February 19, 2002 by William Pryor, Jr., Esq., Attorney General of Alabama; Professor Charles Fried of the Harvard Law School (former Solicitor General of the United States) as amicus curiae; William H. Mills for the defense and Professor Steven B. Duke of the Yale Law School as amicus curiae for the National Association of Criminal Defense Lawyers. See Linda Greenhouse, Right To Counsel Expanded By A Divided Supreme Court, The New York Times, May 21, 2002 at A14.

U.S. v. Booker (04-104) and U.S. v. Fanfan (04-105), 543 U.S. 220, 125 S.Ct. 738 (2005). Mr. Liotti filed an amicus curiae brief to contest the constitutionality of the Federal Sentencing Guidelines. See TIDBITS by Steve LaCheen, quotations from Mr. Liotti’s amicus curiae brief in U.S. v. Booker and Fanfan, The Roundtable, American Board of Criminal Lawyers, Vol. MMIV, No. 12, November, 2004 at 2:

“Talk about cojones...Tom Liotti has filed an amicus brief in the U.S. Supreme Court in the two cases on the Court’s docket involving the potential effect of Blakely v. Washington on the U.S. Sentencing Guidelines; the Conclusion of his brief reads as follows:

‘This amicus curiae apologizes to Justice Breyer and the other former and present members of the United States Sentencing Commission for being critical of their well-intentioned work product. Yet, much as Lenin may not have foreseen the creation of what famed Russian writer Aleksandr I. Solzhenitsyn, referred to as The Gulag Archipelago, so too it must be that the United States Sentencing Commission had no idea the evil that would be wrongful from their efforts.’

“How, you may wonder, did our Tom get to the point where such apology would be deemed appropriate? Try these excerpts from the body of the brief:

‘...the Guidelines have become a hodgepodge, a variable Frankenstein monster of disjointed parts. The uniqueness of individuals and cases has been consigned to a conveyor belt to our federal penitentiaries.’

‘This amicus curiae takes these extraordinary measures to stand against tyranny that has become the Federal Sentencing Guidelines.’

‘We may live in a technical, computer age, but we should fight against the replacement of our human spirit with mechanized sentencing. We are not yet a nation of robots and automatons. We should never become one.’

‘This Court has the power to stop the accentuation away from the Bill of Rights and take us ‘back to the future,’ back to pre-November 1, 1987.’

‘The Court should re-visit and strike down the Sentencing Reform Act of 1984 (28 U.S.C. §994(h)). To adhere to stare decisis under these circumstances would be, a Emerson wrote: ‘A foolish consistency is the hobgoblin of little minds.’

“I could go on, but space does not permit. Tom would, I am certain, be happy to provide all interested parties with a full copy. Talk about a jones!”

[The Editor notes that by the time this appears in the November issue of The Roundtable, the Supreme Court may have decided the case; but, whichever way the Court decides, Tom’s brief is worth reading.]”

See also, Who’s Who, The Attorney of Nassau County, October, 2004 at 2: “Thomas F. Liotti of Garden City received permission from the Solicitor General of the United States and the Supreme Court of the United States to file an amicus curiae brief in the first case that the Supreme Court heard in its new term: US v. Booker and U.S. v. Fanfan, consolidated for an expedited appeal. It concerns the constitutionality of Federal Sentencing Guidelines that have been in existence since 1987. Liotti was to take the side of the respondents and argue that the guidelines are unconstitutional because they allow for enhanced sentences without proof beyond a reasonable doubt.”

See also, The Attorney of Nassau County, February, 2005 at 2: “Garden City attorney Tom Liotti has several clients whom he is representing in federal criminal cases and appeals. When the Supreme Court of the United States last year granted leave to appeal in two important sentencing cases, he followed the briefs that were being filed because his clients would be affected by the outcome, he said, adding that he decided to file an amicus curiae brief to protect his clients’ best interests. In September, 2004 he obtained permission from all counsel in the case and the Solicitor General of the United States to file the brief. He then managed to do that in less than 24 hours taking the position that the Federal Sentencing Guidelines, which have been in effect since 1987, should be declared unconstitutional. Last week the Supreme Court agreed in a 5-4 decision. Liotti undertook this initiative pro bono.

Commenting on the decision Liotti said: “The Federal Sentencing Guidelines have acted like a tsunami ruining untold lives, and causing our prison population to explode and giving prosecutors more power than the Judiciary and defense lawyers. The guidelines upset the balance of power among the three branches of government. It will take us years to recover from the havoc created by the guidelines. The Booker and Fanfan cases need to be made retroactive and our next challenge should be to mandatory minimum sentencing, another tinderbox waiting to go off. If no on else does, I’ll light the fuse on that one too.”