Criminal Law & Procedure

The Opioid Epidemic: Problem and Prescription - Podcast

Criminal Law & Procedure Practice Group Podcast
Shane Dana, Drew Hudson, James Baehr July 27, 2016

Over 75 Americans die every day of an opioid overdose (both prescription drug opioids and heroin), a number that has quadrupled since 1999. Meanwhile, the amount of prescription drug opioids (oxycodone, hydrocodone and their ilk) sold in the United States has grown fourfold during the same period.

Our experts explored the scope of this growing problem, and the proposed legislative solution, the Comprehensive Addiction and Recovery Act signed into law by President Obama on July 22, 2016.


  • Shane Dana, Federal Bureau of Investigation; Case Agent, Chasing the Dragon Project
  • Drew Hudson, Legislative Counsel, United States Senate Judiciary Committee
  • Moderator: James Baehr, Assistant United States Attorney, Eastern District of Louisiana

Privacy and Cell-Site Simulators - Podcast

Criminal Law & Procedure Practice Group Podcast
Howard W. Cox, Brian L. Owsley July 20, 2016

Cell-site simulators are devices used by law enforcement. In response to the signals emitted by a cell-site simulator, cellular devices in the proximity identify the simulator as the most attractive cell tower in the area and transmit signals to the simulator that identify the device. Using these simulators, investigators can locate cellular devices whose unique identifiers are already known to law enforcement, or determine the unique identifiers of an unknown device by collecting limited signaling information from devices in the simulator user’s vicinity.

It has been a subject of debate whether the use of cell-site simulators by the government requires a warrant supported by probable cause. In September 2015, the Justice Department released a policy requiring federal investigators to obtain a warrant prior to employing a simulator, except under exceptional circumstances.

Is there a Fourth Amendment reasonable expectation of privacy in the data collected by cell-site simulators? Who is in the best position to establish limits in this area (if any), Congress or the courts? Should investigators be permitted to use simulators, even with a warrant?


  • Howard W. Cox, Adjunct Professor, George Washington University
  • Prof. Brian L. Owsley, Assistant Professor of Law, UNT Dallas College of Law

Lynch v. Arizona - Post-Decision SCOTUScast

SCOTUScast 7-14-16 featuring Marah Stith McLeod
Marah Stith McLeod July 14, 2016

On May 31, 2016, the Supreme Court decided Lynch v. Arizona without oral argument. A jury convicted Shawn Patrick Lynch of first-degree murder, kidnapping, armed robbery, and burglary for the 2001 killing of James Panzarella. The State of Arizona sought the death penalty, and, before penalty phase began, moved successfully to prevent Lynch’s counsel from informing the jury that the only alternative to a death sentence was life without parole. When the first jury failed to reach a unanimous verdict, a second jury sentenced Lynch to death. After that sentence was vacated by a state appellate court due to errors in the jury instructions, a third penalty phase jury was convened and again sentenced Lynch to death.  

On appeal, Lynch, invoking the U.S. Supreme Court’s decision in Simmons v. South Carolina, argued that the trial court’s refusal to allow mention of his ineligibility for parole violated his federal Due Process rights. In Simmons, the Court stated that “where a capital defendant’s future dangerousness is at issue, and the only sentencing alternative to death available to the jury is life imprisonment without possibility of parole,” the Due Process Clause “entitles the defendant ‘to inform the jury of [his] parole ineligibility, either by a jury instruction or in arguments by counsel.’” The Arizona Supreme Court rejected Lynch’s argument and affirmed his death sentence.

By a of vote of 6-2, the U.S. Supreme Court reversed the Arizona Supreme Court’s judgment and remanded the case, holding in a per curiam opinion that the Arizona Supreme Court had erred in its attempt to distinguish Lynch’s case from the situation in Simmons. Justice Thomas filed a dissenting opinion, in which Justice Alito joined.

To discuss the case, we have Marah McLeod, who is an Associate Professor at Notre Dame Law School.

Dietz v. Bouldin - Post-Decision SCOTUScast

SCOTUScast 7-12-16 featuring Brad Shannon
Bradley Shannon July 12, 2016

On June 9, 2016, the Supreme Court decided Dietz v. Bouldin. Petitioner Rocky Dietz sued respondent Hillary Bouldin for negligence for injuries suffered in an automobile accident. Bouldin removed the case to Federal District Court. At trial, Bouldin admitted liability and stipulated to damages of $10,136 for Dietz’ medical expenses. The only disputed issue remaining was whether Dietz was entitled to more. During deliberations, the jury sent the judge a note asking whether Dietz’s medical expenses had been paid and, if so, by whom. Although the judge was concerned that the jury may not have understood that a verdict of less than the stipulated amount would require a mistrial, the judge, with the parties’ consent, responded only that the information being sought was not relevant to the verdict. The jury returned a verdict in Dietz’ favor but awarded him $0 in damages. After the verdict, the judge discharged the jury, and the jurors left the courtroom. Moments later, the judge realized the error in the $0 verdict and ordered the clerk to bring back the jurors, who were all in the building—including one who may have left for a short time and returned. Over the objection of Dietz’s counsel and in the interest of judicial economy and efficiency, the judge decided to recall the jury. After questioning the jurors as a group, the judge was satisfied that none had spoken about the case to anyone and ordered them to return the next morning. After receiving clarifying instructions, the reassembled jury returned a verdict awarding Dietz $15,000 in damages. On appeal, the Ninth Circuit affirmed. 

The question before the Supreme Court was whether a federal district court can recall a jury it has discharged, or whether the court can remedy the error only by ordering a new trial. By a vote of 6-2, the Supreme Court affirmed the judgment of the Ninth Circuit. Justice Sotomayor delivered the opinion of the Court, which held that a federal district court has a limited inherent power to rescind a jury discharge order and recall a jury in a civil case for further deliberations after identifying an error in the jury's verdict. The district court did not abuse that power here. Justice Sotomayor’s majority opinion was joined by the Chief Justice and Justices Ginsburg, Breyer, Alito, and Kagan. Justice Thomas filed a dissenting opinion, in which Justice Kennedy joined.

To discuss the case, we have Brad Shannon, who is Professor of Law at Florida Coastal School of Law.

United States v. Bryant - Post-Decision SCOTUScast

SCOTUScast 7-12-16 featuring Thomas F. Gede
Thomas F. Gede July 12, 2016

On June 13, 2016, the Supreme Court decided United States v. Bryant. Michael Bryant, Jr., has multiple tribal-court convictions for domestic assault. For most of those convictions he was sentenced to terms of imprisonment, none of them exceeding one year’s duration. He did not have the benefit of counsel with respect to these convictions, though they complied with the Indian Civil Rights Act (ICRA). Having made further domestic assaults in 2011, Bryant was charged with violating 18 U.S.C. §117(a), which makes it a federal crime for any person to “commi[t] a domestic assault within...Indian country” if the person has at least two prior final convictions for domestic violence rendered “in Federal, State, or Indian tribal court proceedings.” He argued that the Sixth Amendment precluded use of his prior, uncounseled, tribal-court misdemeanor convictions to satisfy §117(a)’s predicate-offense element. Although the district court rejected Bryant’s argument the U.S. Court of Appeals for the Ninth Circuit agreed with him, vacating his conviction and directing dismissal of the indictment. 

By a vote of 8-0, the Supreme Court reversed the judgment of the Ninth Circuit and remanded the case. Justice Ginsburg delivered the opinion for a unanimous Court, which held that because Bryant’s tribal-court convictions occurred in proceedings that complied with ICRA and were therefore valid when entered, use of those convictions as predicate offenses in a §117(a) prosecution does not violate the Constitution. Justice Thomas filed a concurring opinion.

To discuss the case, we have Thomas F. Gede, who is Principal at Morgan Lewis Consulting LLC and of counsel at Morgan, Lewis & Bockius LLP.