Criminal Law

The Ferguson Effect, The War on Cops, Over-Incarceration, and more!

Miami Lawyers Chapter Tuesday, July 26, 05:30 PMThe Coral Gables Country Club
990 Alhambra Circle
Coral Gables, FL 33134


  • Heather MacDonaldThomas W. Smith Fellow, The Manhattan Institute, New York City
  • Tamara Lawson - Associate Dean for Faculty Development & Professor of Law, St. Thomas University School of Law, Miami, Florida

Moderator, William Shepherd, Esq. - Partner, Holland & Knight, Former Florida Statewide Prosecutor

McDonnell v. US: Corruption or Federal Overreach?

Short video featuring Rachel Paulose
Rachel Kunjummen Paulose April 25, 2016

Partner at DLA Piper LLP and Former U.S. Attorney Rachel Paulose discusses the appeal of Governor McDonnell’s criminal conviction for corruption because he accepted gifts and money from Williams in exchange for helping Williams develop his business in Virginia. Governor McDonnell denies violating the relevant federal laws. The Supreme Court hears the case on Wednesday, April 27. 

Williams v. Pennsylvania - Post-Argument SCOTUScast

SCOTUScast 4-20-16 featuring Cassandra Burke Robertson
Cassandra Burke Robertson April 20, 2016

On February 29, 2016, the Supreme Court heard oral arguments in Williams v. Pennsylvania. Terrance Williams was convicted and sentenced to death for the robbery and murder of Amos Norwood. The Supreme Court of Pennsylvania affirmed Williams’ conviction and sentence, and his initial attempts to obtain state postconviction relief failed. His subsequent petition for federal habeas relief also failed.  He again sought post-conviction penalty-related relief in state court and prevailed in the Court of Common Pleas on a claim of unlawful evidence suppression. On appeal, however, the Pennsylvania Supreme Court reversed the grant of relief and lifted the stay of execution (though a temporary reprieve was later granted by the governor for other reasons). The Chief Justice of the Pennsylvania Supreme Court, Ronald Castille--who had joined the opinion reversing the grant of relief to Williams--had also been the District Attorney for Philadelphia during Williams’ trial, sentencing, and appeal. In that capacity, Castille had authorized his office to seek the death penalty for Williams.  Williams had moved to have Chief Justice Castille recuse himself from hearing the appeal of post-conviction relief, but Castille declined to do so.

The question now before the U.S. Supreme Court is twofold: (1) Whether the Eighth and Fourteenth Amendments are violated where a state supreme court justice declines to recuse himself in a capital case in which he had personally approved the decision to pursue capital punishment against the defendant in his prior capacity as an elected prosecutor and continued to head the prosecutor’s office that defended the death verdict on appeal, and where he had publicly expressed strong support for capital punishment during his judicial election campaign; and (2) whether the Eighth and Fourteenth Amendments are violated by the participation of a potentially biased jurist on a multi-member tribunal deciding a capital case, regardless of whether his vote is ultimately decisive.

To discuss the case, we have Cassandra Burke Robertson, who is Professor of Law, Laura B. Chisolm Distinguished Research Scholar, and Director, Center for Professional Ethics at Case Western Reserve University School of Law.

Welch v. United States - Post-Decision SCOTUScast

SCOTUScast 4-20-16 featuring Richard E. Myers II
Richard E. Myers April 20, 2016

On April 18, 2016, the Supreme Court decided Welch v. United States. Gregory Welch pleaded guilty to the charge of being a felon in possession of a firearm, in violation of federal law. Because Welch had three prior felony convictions, the district court determined that the Armed Career Criminal Act (ACCA) required that he be sentenced to a minimum of 15 years in prison. Welch appealed, arguing that his conviction for robbery in Florida state court did not qualify as a predicate offense for the purposes of ACCA because, at the time he was convicted, Florida state law allowed for a robbery conviction with a lower level of force than the federal law required to qualify as a predicate offense. The U.S. Court of Appeals for the Eleventh Circuit, however, affirmed the district court’s judgment, concluding that the minimum elements for conviction under the Florida law established a “serious risk of physical injury to another” and therefore qualified it as a predicate offense for purposes of ACCA. Welch’s subsequent attempt to obtain habeas relief from the district court was denied, and the Eleventh Circuit rejected his appeal, but the Supreme Court granted certiorari. 

The two questions before the Supreme Court are: (1) Whether Johnson v. United States, 135 S. Ct. 2551 (2015)—which held that the residual clause in the Armed Career Criminal Act of 1984 (ACCA), 18 U.S.C. 924(e)(2)(B)(ii), is unconstitutionally vague—announced a new “substantive” rule of constitutional law that is retroactively applicable in an initial motion to vacate a federal prisoner’s ACCA-enhanced sentence under 28 U.S.C. 2255(a); and (2) Whether petitioner’s conviction for robbery under Florida state law qualifies as a violent felony that supports a sentence enhancement under the ACCA. 

By a vote of 7-1, the Supreme Court vacated the judgment of the Eleventh Circuit and remanded the case. Justice Kennedy delivered the opinion of the Court, holding that Johnson announced a new substantive rule that has retroactive effect in cases on collateral review, including Welch’s. The Court declined to address, however, whether Welch’s conviction for robbery under Florida law qualified as a predicate for purposes of the ACCA enhancement, leaving the matter to the Court of Appeals on remand.

Justice Kennedy’s majority opinion was joined by the Chief Justice and Justices Ginsburg, Breyer, Alito, Sotomayor, and Kagan. Justice Thomas filed a dissenting opinion.

To discuss the case, we have Richard E. Myers II, who is the Henry Brandis Distinguished Professor of Law, University of North Carolina School of Law.

Betterman v. Montana - Post-Argument SCOTUScast

SCOTUScast 4-13-16 featuring Anthony Johnstone
Anthony Johnstone April 13, 2016

On March 28, 2016, the Supreme Court heard oral argument in Betterman v. Montana. Brandon Thomas Betterman pled to and was sentenced for the offense of bail-jumping. He argued on appeal that a 14-month delay between the entry of his guilty plea and his sentencing violated his Sixth Amendment right to a speedy trial. The Supreme Court of Montana affirmed Betterman’s conviction and sentence, holding that the constitutional right to a speedy trial does not extend from conviction to sentencing. A criminal defendant still retains, the court concluded, a Fourteenth Amendment due process right to have sentence imposed in a timely manner, without unreasonable delay--and the delay in this case was unacceptable--but any resulting prejudice to Betterman was speculative and not substantial and demonstrable.

The U.S. Supreme Court subsequently granted certiorari on the following issue: whether the Sixth Amendment’s Speedy Trial Clause applies to the sentencing phase of a criminal prosecution, protecting a criminal defendant from inordinate delay in final disposition of his case. 

To discuss the case, we have Anthony Johnstone, who is Associate Professor at University of Montana Alexander Blewett III School of Law.