Criminal Law & Procedure

Weaver v. Massachusetts - Post-Argument SCOTUScast

SCOTUScast 5-22-17 featuring Peter M. Thomson
Peter M. Thomson May 22, 2017

On April 19, 2017, the Supreme Court heard oral argument in Weaver v. Massachusetts. Kentel Myrone Weaver was convicted of first degree murder for the 2003 shooting of Germaine Rucker. In 2011, Weaver filed a motion for a new trial, claiming that he was denied effective assistance of counsel. A court officer had closed the court to Weaver’s family and other members of the public during jury selection because of overcrowding. Weaver claimed that this closure violated his Sixth Amendment right to a public trial, and his counsel had failed to object to the closure. The Supreme Judicial Court of Massachusetts affirmed Weaver’s conviction on direct appeal and declined to grant relief on his Sixth Amendment claim.

The question before the Supreme Court is whether a defendant asserting ineffective assistance that results in a structural error must, in addition to demonstrating deficient performance, show that he was prejudiced by counsel's ineffectiveness, as held by four circuits and five state courts of last resort; or whether prejudice is presumed in such cases, as held by four other circuits and two state high courts.

To discuss the case, we have Peter M. Thomson, who is Special Counsel at Stone Pigman Walther Wittmann LLC.

Beckles v. United States - Post-Decision SCOTUScast

SCOTUScast 5-8-17 featuring Carissa Hessick
Carissa Byrne Hessick May 08, 2017

On March 6, 2017, the Supreme Court decided Beckles v. United States. Travis Beckles, who had various felony convictions, was subsequently found guilty of being a convicted felon in possession of a firearm.  As a result he was subject to an enhanced sentence under the U.S. Sentencing Guidelines, which deemed him a “career offender” whose firearm possession offense constituted a “crime of violence.” Applying the enhancement, the district court sentenced Beckles to 360 months’ imprisonment. His conviction and sentence were affirmed on direct appeal, and the Supreme Court denied certiorari. Beckles then sought habeas relief from his enhanced sentence, arguing that his conviction for unlawful possession of a firearm was not a “crime of violence,” and that therefore he did not qualify as a “career offender” under the Guidelines. The district court denied his petition and the U.S. Court of Appeals for the Eleventh Circuit again affirmed.

Beckles then petitioned the Supreme Court for certiorari and while his petition was pending the Court decided Johnson v. United States, which held that the residual clause part of the “crime of violence” definition in the Armed Career Criminal Act--the very same language that was applied to Beckles via the Sentencing Guidelines--was unconstitutionally vague. The Court, therefore, vacated the judgment in Beckles’ case and remanded to the Eleventh Circuit for further consideration in light of the Johnson decision. On remand, the Eleventh Circuit again affirmed Beckles’ enhanced sentence, reasoning that Johnson simply did not address the Sentencing Guidelines or related commentary. The Supreme Court then again granted certiorari, to “resolve a conflict among the Courts of Appeals on the question whether Johnson’s vagueness holding applies to the residual clause in [the Guidelines.]”

By a vote of 7-0, the Supreme Court affirmed the judgment of the Eleventh Circuit. Justice Thomas delivered the opinion of the Court, which held that “the advisory Sentencing Guidelines are not subject to a vagueness challenge under the Due Process Clause and that [the Guidelines’] residual clause is not void for vagueness.” Justice Thomas’s majority opinion was joined by the Chief Justice and Justices Kennedy, Breyer, and Alito. Justice Kennedy also filed a concurring opinion. Justices Ginsburg and Sotomayor filed opinions concurring in the judgment. Justice Kagan took no part in the consideration or decision of this case.

To discuss the case, we have Carissa Hessick, who is the Anne Shea Ransdell and William Garland "Buck" Ransdell, Jr. Distinguished Professor of Law at the University of North Carolina School of Law.

Federal Oversight of Local Police Departments - Podcast

Criminal Law & Procedure Practice Group Podcast
Chuck Canterbury, Vanita Gupta, Brian M. Fish April 25, 2017

Under Attorney Generals Eric Holder and Loretta Lynch, the Department of Justice entered into a number of consent decrees with local police departments to change certain police practices.  Given the ongoing review of these decrees, how will the federal government’s approach to police practices change during Jeff Sessions’ tenure as Attorney General?  What alternative methods might the DOJ employ or encourage states and municipalities to employ to help remedy problematic police practices?


  • Chuck Canterbury, President, Fraternal Order of Police
  • Vanita Gupta, President, The Leadership Conference on Civil and Human Rights
  • Moderator: Brian Fish, Special Assistant, United States Attorney, Baltimore, Maryland

Pena-Rodriguez v. Colorado - Post-Decision SCOTUScast

SCOTUScast 4-6-17 featuring John C. Richter
John C. Richter April 06, 2017

On March 6, 2017, the Supreme Court decided Pena-Rodriguez v. Colorado. Miguel Angel Pena-Rodriguez was convicted of unlawful sexual conduct and harassment in state trial court. Two jurors later informed Pena-Rodriguez’s counsel that another juror made racially-biased statements about Pena-Rodriguez and an alibi witness during jury deliberations. The trial court authorized counsel to contact the two jurors for their affidavits detailing what the allegedly biased juror had said. Pena-Rodriguez moved for a new trial after learning from the affidavits that the juror had suggested Pena-Rodriguez was guilty because he was Hispanic (and this juror considered Hispanic males to be sexually aggressive toward females). According to the affidavits, the juror also deemed the alibi witness not credible because, among other things, that witness was “an illegal.” The trial court denied the motion and a divided Supreme Court of Colorado ultimately affirmed, applying Colorado Rule of Evidence 606(b)--which prohibits juror testimony on any matter occurring during the jury deliberations--and finding that none of the exceptions to the rule applied. In the dissenters’ view, however, Rule 606(b) should have yielded to “the defendant’s constitutional right to an impartial jury.”

The question before the U.S. Supreme Court was whether a no-impeachment rule constitutionally may bar evidence of racial bias offered to prove a violation of the Sixth Amendment right to an impartial jury.

By a vote of 5-3, the U.S. Supreme Court reversed the judgment of the Supreme Court of Colorado and remanded the case. Justice Kennedy delivered the opinion of the Court, while held that when a juror makes a clear statement indicating that he or she relied on racial stereotypes or animus to convict a criminal defendant, the Sixth Amendment requires that the no-impeachment rule give way in order to permit the trial court to consider the evidence of the juror's statement and any resulting denial of the jury trial guarantee. Justice Kennedy’s majority opinion was joined by Justices Ginsburg, Breyer, Sotomayor, and Kagan. Justice Thomas filed a dissenting opinion. Justice Alito filed a dissenting opinion, in which Chief Justice Roberts and Justice Thomas joined.

To discuss the case, we have John C. Richter, who is Partner at King & Spalding.

Packingham v. North Carolina - Post-Argument SCOTUScast

SCOTUScast 3-30-17 featuring Ilya Shapiro
Ilya Shapiro March 30, 2017

On February 27, 2017, the Supreme Court heard oral argument in Packingham v. North Carolina. Lester Packingham was convicted in 2002 of taking “indecent liberties” with a minor in violation of North Carolina law, and sentenced to prison time followed by supervised release. In 2010, he was arrested after authorities came across a post on his Facebook profile--which he had set up using an alias--in which he thanked God for having a parking ticket dismissed. Packingham was charged with, and convicted of, violating a North Carolina law that restricted the access of convicted sex offenders to “commercial social networking” websites.
Packingham challenged his conviction on First Amendment grounds, arguing that the North Carolina statute unlawfully restricted his freedom of speech and association, but the Supreme Court of North Carolina ultimately rejected his claim. The website access restriction, the Court concluded, was a content-neutral, conduct-based regulation that only incidentally burdened Packingham’s speech, was narrowly tailored to serve a substantial governmental interest, and left open ample alternative channels of communication.

The question before the U.S. Supreme Court is whether, under the Court’s First Amendment precedents, a law that makes it a felony for any person on the state's registry of former sex offenders to “access” a website that enables communication, expression, and the exchange of information among users--if the site is “know[n]” to allow minors to have accounts--is permissible on its face and as applied to Packingham.

To discuss the case, we have Ilya Shapiro, who is Senior Fellow in Constitutional Studies at the Cato Institute.