Criminal Law & Procedure

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

Is the FBI Taking a Bite Out of Apple? - Podcast

International & National Security Law Practice Group Podcast
Justin (Gus) Hurwitz, Jamil N. Jaffer May 27, 2016

In the aftermath of the San Bernadino terrorist attack, the Federal Bureau of Investigations sought the assistance of Apple in its investigation. An Apple phone used by one of the terrorists included a function, which the FBI wanted Apple to defeat, that would automatically delete all stored information after ten failed hacking attempts. Defeating the function would have required Apple employees to write code, which Apple contended amounted to compelled speech. Privacy issues were also asserted, but countered, at least in part, by the fact that the user of the phone was deceased, and the phone was actually owned by a local government. After the FBI used other sources to get the information it sought, Apple moved against the FBI to disclose exactly whether and how it had bypassed the delete function. Our experts discussed this interesting matter and next steps.


  • Prof. Justin (Gus) Hurwitz, Assistant Professor of Law, Nebraska College of Law
  • Jamil N. Jaffer, Adjunct Professor of Law and Director, Homeland and National Security Law Program, George Mason University School of Law and former Chief Counsel and Senior Advisor, Senate Foreign Relations Committee

Racial Pretexts in Peremptory Jury Strikes: The Impact of Foster v. Chatman - Podcast

Criminal Law & Procedure Practice Group Podcast
Joseph L. Hoffmann May 25, 2016

The Supreme Court issued its 7-1 ruling in Foster v. Chatman on May 23, reversing the Supreme Court of Georgia and remanding the case. Foster was convicted of murder and sentenced to death three decades ago by an all-white jury. The prosecutor struck all of the black jurors and had plans to do so before the voir dire began. The prosecution presented several race-neutral reasons for striking the jurors, and the Georgia courts ruled against the Batson claim. Foster later gained access to the prosecution's jury-selection notes that showed some racial pretext and used them for a renewed Batson claim. The Georgia courts rejected the claim as barred by state res judicata. Chief Justice Roberts wrote for the majority of the court finding that the court did still have jurisdiction and impermissible racial pretext was apparent for at least two of the state's peremptory strikes. Justice Thomas wrote a firm dissent where he doubted the court's jurisdiction. This Teleforum discussed the ramifications of this decision on the future of Batson deference, res judicata, and how this case might affect capital appeals pending throughout the nation.


  • Prof. Joseph L. Hoffmann, Harry Pratter Professor of Law and Director for Strategic Projects, Indiana University Maurer School of Law

Ocasio v. United States - Post-Decision SCOTUScast

SCOTUScast 5-16-16 featuring Timothy O'Toole
Timothy P. O'Toole May 16, 2016

On May 2, 2016, the Supreme Court decided Ocasio v. United States. Former police officer Samuel Ocasio challenged his conviction under the Hobbs Act for conspiracy to commit extortion, which arose from an alleged kickback scheme under which police officers funneled wrecked automobiles to a particular repair shop in exchange for monetary payments. He was charged with obtaining money from the shop owners under color of official right and of conspiring to violate the Hobbs Act. The District Court rejected Ocasio’s argument that a Hobbs Act conspiracy requires proof that the alleged conspirators agreed to obtain property from someone outside the conspiracy. He was convicted on all counts and the U.S. Court of Appeals for the Fourth Circuit affirmed the convictions. The question before the Supreme Court was whether a conspiracy to commit extortion requires that the conspirators agree to obtain property from someone outside the conspiracy.

By a vote of 5-3, the Supreme Court affirmed the judgment of the Fourth Circuit. Justice Alito delivered the opinion of the Court, which held that a defendant may be convicted of conspiring to violate the Hobbs Act based on proof that he reached an agreement with the owner of the property in question to obtain that property under color of official right. Justice Alito’s opinion was joined by Justices Kennedy, Ginsburg, Breyer, and Kagan. Justice Breyer filed a concurring opinion. Justice Thomas filed a dissenting opinion. Justice Sotomayor filed a dissenting opinion, in which Chief Justice Roberts joined.

To discuss the case, we have Timothy O’Toole, who is a Lawyer at Miller & Chevalier.

McDonnell v. United States - Post-Argument SCOTUScast

SCOTUScast 5-13-16 featuring William Haun
William J. Haun May 13, 2016

On April 27, 2016, the Supreme Court heard oral argument in McDonnell v. United States. Robert F. McDonnell, former Governor of Virginia, was convicted in a jury trial of eleven counts of corruption.  During the trial, prosecutors sought to prove that McDonnell and his wife Maureen while he was Governor, accepted money and lavish gifts in exchange for efforts to assist a Virginia company in securing state university testing of a dietary supplement the company had developed. The McDonnells, prosecutors argued, took “official action” on behalf of the company in exchange for money, campaign contributions, or other things of value, in violation of various federal statutes.  Robert McDonnell was sentenced to two years in prison.  The U.S. Court of Appeals for the Fourth Circuit affirmed McDonnell’s conviction, but the U.S. Supreme Court granted his request to remain out of prison until the Court resolves his appeal.

The question before the Supreme Court is whether “official action” under the controlling fraud statutes is limited to exercising actual governmental power, threatening to exercise such power, or pressuring others to exercise such power, and whether the jury must be so instructed; or, if not so limited, whether the Hobbs Act and honest-services fraud statute are unconstitutional.

To discuss the case, we have William J. Haun, who is an associate at Hunton & Williams, LLP.