Plead the Fifth (Cir.)

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Latest Episodes:

State Rights in Criminal Prosecution? Perhaps. Dec 22, 2022

In this episode, we discussed a recent case U.S. v. Seekins, in which the federal public defender attempted to push the Fifth Circuit to revisit the scope of interstate commerce in the criminal justice context. By a close vote (7-9), the Fifth Circuit refused to open this door. However, Justice Ho, in his dissenting opinion, laid out a blueprint for the defendant to get the the Supreme Court's attention. Will this case be the case for the conservative Supreme Court to cut back on the scope of interstate commerce? Joel Page, the federal defender who prepared and argued this case, offered his thoughts in this episode.
Host: Leo Yu (SMU Law)
Guest: Joel Page (Appellate Chief of the Federal Public Defender's Office (NDTX))

"Oops.", says Justice Willett. Jun 28, 2022

In Shepperd v. United States, an attorney represented his client, the criminal defendant, and also the government's key witness at the same time. Two weeks before trial, this conflict of interest was finally made known to the defendant, who immediately obtained new counsel. The new counsel informed the trial court about the conflict and requested a continuance of the trial. The trial court, however, held that the trial must proceed as planned. The defendant got 30 years from the trial.
The case got appealed to the Fifth Circuit. Justice Willett, writing for the Court, was rather assumed by this clear conflict of interest. He actually wrote "Oops." as his reaction in this opinion. Nevertheless, the Court refused to vacate the verdict, but remanded the case back to the trial court for an evidentiary hearing.
Host: Prof. Leo Yu, SMU School of Law
Guest: Prof. Pamela Metzger, SMU School of Law, Director of the Deason Criminal Justice Reform Center

"May I search your phone, with good faith?" May 13, 2022

Can a police officer search a criminal suspect's cell phone in full, when the only charge in the warrant was drug possession, and the affidavit provided barebone justification? This is the question the Fifth Circuit was presented in U.S. v. Morton. The Morton case presents an issue that is not fully resolved by the Supreme Court - what kind of protection a cell phone deserves under the Fourth Amendment? Treat it like a person's home? Or, more than a home?
We have the privilege to have two guest attorneys who are directly involved in this case to share some insights: Brandon Beck from the Federal Public Defender's Office, who argued this case at the Fifth Circuit, and Aisha Dennis from the National Association of Criminal Defense Lawyers.

"Do I need to listen to the Supreme Court?" The Fifth Circuit Has Doubts. Mar 14, 2022

When the U.S. Supreme Court remands a case back to a circuit court, how much room does the circuit court have to "play around"? The Fifth Circuit's response is "a lot".
The U.S. Supreme Court remanded the SB8 case back to the Fifth Circuit and allowed claims against Texas health agencies to proceed. The Fifth Circuit is not pleased. Instead of following the Supreme Court's remand order, the Fifth Circuit certified a question - whether the state health agencies have the enforcement power under SB8 - to the Texas Supreme Court. This new method ignited a lot of fires between Justice Edith Jones and Justice Stephen Higginson.
Host: Prof. Leo Yu, SMU Dedman School of Law
Guest: Prof. Brian Owsley, UNT Dallas School of Law.

A Retirement and A Resignation Jan 31, 2022

In this episode, we talked about Justice Breyer's retirement and Justice Gregg Costa's unexpected resignation from the Fifth Circuit. Justice Breyer's retirement announcement proposes an opportunity to the Biden administration and the replacement strategy is rather clear - Biden has determined to deliver his campaign promise to nominate an African American woman to fill the seat. But what about Costa's unorthodox resignation? At the age of 49, Costa, a young Obama appointee, announced his resignation and will leave the Court in August. What does this resignation mean to the hot bench at the Fifth Circuit?
Host: Leo Yu, Clinical Professor at SMU Law
Guests: Brian Owsley, Associate Professor at UNT Law; Joel Page, Appellate Chief of the Federal Public Defender's Office (NDTX)

COVID-19 is not that big of a deal, according to the Fifth Circuit Nov 20, 2021

On November 5, 2021, the Occupational Safety and Health Administration (OSHA) issued an Emergency Temporary Standard (ETS), which required employers who have more than 100 employees to mandate vaccination for their employees. A variety of plaintiffs requested a stay from the Fifth Circuit, and the Fifth Circuit granted a stay on November 6. On November 13, the Court issued a longer opinion, affirming its previous stay, and extended the stay till the final judgment. BTS Holdings v. OSHA, (No. 21-60845, November 13, 2021).
In this episode, we analyzed the Fifth Circuit's jurisprudence toward administrative actions, and we also discussed the Court's general position toward COVID 19.

Speakers:
Brian Owsley, University of North Texas School of Law
Leo Yu, Southern Methodist University School of Law

Abortion, Standing, and the "Audition" for the Supreme Court Oct 30, 2021

In this episode, we talked about the Fifth Circuit's rulings on Texas's controversial legislation, the SB8. SB8 makes every woman who seeks abortion "sui-able" by any private citizen for damages over 10,000, and attorneys' fees. The Fifth Circuit refused to stay the enforcement of SB8, based on a classic Article III standing argument, which is the lack of enforcement connection with the defendants.
We also talked about the Fifth Circuit's dynamic after the confirmation of Justice Barrett, and the "audition" process for circuit justices who aim for the Supreme Court Justice position.
Speakers:
Prof. Leo Yu, Clinical Professor of Southern Methodist University, Dedman School of Law
Prof. Brian Owsley, Associate Professor of the University of North Texas, Dallas College of Law

A Constitutional Crisis, or a Classic Lawyer's Drama? Aug 09, 2021

Several attorneys filed lawsuits against the State Bar of Texas and the State Bar of Louisiana, alleging that some bar activities are overly political and ideological, which violated their First Amendment rights. The challenged bar activities are primarily initiatives regarding diversity, access to justice, and immigration issues.
While the Fifth Circuit recognized the constitutional issues in these cases, the Court upheld the majority of the bar activities, concluding that those activities, although seemingly political and ideological, may survive plaintiffs' constitutional challenge under the Supreme Court's ruling in Keller v. State Bar of California.
Cases:
McDonald v. Longley, No. 20-50448; Boudreaux v. Louisiana State Bar Ass'n, No. 20-30086
Speakers:
Leo Yu, Clinical Professor at SMU Dedman School of Law
Lynne Rambo, Emeritus Professor of Law at Texas A&M School of Law
Brian Owsley, Assistant Professor of Law at UNT Dallas College of Law

The Federal Sentencing Guideline: a Non-Mandatory Dilemma May 08, 2021

In this episode, we are going to review five recent Fifth Circuit Cases regarding the federal sentencing guideline. These cases address issues that frequently occur at the sentencing phase and at appeals, such as relevant conduct, plain error review, etc.
Speakers:
Joel Page, Chief of Appeals of the Federal Public Defender's Office - NDTX
Tim Crooks, Former Chief of Appeals of the Federal Public Defender's Office - SDTX
Leo Yu (moderator), Sr. Assistant City Attorney of Dallas
Cases:
USA v. Reyna-Aragon (20-10071)
USA v. Mims (19-50921)
USA v. Burney (20-10525)
USA v. Horton (18-11577)
USA v. Deckert (19-40292)

Big changes in FLSA, and another sad story about the death penalty Mar 18, 2021

In this episode, we are going to cover six recently issued public opinions.
Three of them are from the court's civil docket, and they are regarding the Court's new jurisprudence on employment and labor law and the federal civil procedure. The three cases from the criminal docket involve the death penalty and the Fourth Amendment.
Speakers:
Joel Page, Federal Public Defender's Office (NDTX)
Raffi Melkonian, Wright Close and Barger, LLP.
Leo Yu, Dallas City Attorney's Office - Creator/Moderator

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