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Justice Scalia and the Criminal Law - Audio/Video

2016 National Lawyers Convention
Rachel Barkow, Stephanos Bibas, Orin S. Kerr, Paul J. Larkin, Stephen J. Markman, David Stras, John G. Malcolm November 23, 2016

Justice Scalia's originalism had an important impact on our nation's criminal law. While sometimes overlooked, his commitment to the rights of criminal defendants, as rooted in the Constitution, is indisputable. He forthrightly addressed new Fourth Amendment issues including technological advances in surveillance, revived the Sixth Amendment's jury and confrontation clauses, remained mindful of both common law and substantive criminal law concerns, and in many instances swayed his fellow justices. This panel will delve into these areas and discuss if and how Justice Scalia's work will continue to affect future Court decisions.

This panel was held on November 17, 2016, during the 2016 National Lawyers Convention in Washington, DC.

Criminal Law: Justice Scalia and the Criminal Law
3:30 p.m. – 5:00 p.m.
East Room

  • Prof. Rachel E. Barkow, Segal Family Professor of Regulatory Law and Policy and Faculty Director, Center on the Administration of Criminal Law, New York University School of Law
  • Prof. Stephanos Bibas, Professor of Law and Criminology and Director, Supreme Court Clinic, University of Pennsylvania Law School
  • Prof. Orin S. Kerr, Fred C. Stevenson Research Professor of Law, The George Washington University Law School
  • Mr. Paul J. Larkin, Jr., Senior Legal Research Fellow, Edwin Meese III Center for Legal and Judicial Studies, The Heritage Foundation
  • Hon. Stephen J. Markman, Michigan Supreme Court
  • Moderator: Hon. David R. Stras, Minnesota Supreme Court
  • Introduction: Mr. John G. Malcolm, Director, Edwin Meese III Center for Legal and Judicial Studies, and Ed Gilbertson and Sherry Lindberg Gilbertson Senior Legal Fellow, The Heritage Foundation

The Mayflower Hotel
Washington, DC

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.

Hurst v. Florida - Post-Decision SCOTUScast

SCOTUScast featuring Jack Park
John J. Park, Jr. February 11, 2016

On January 12, 2016, the Supreme Court decided Hurst v. Florida. The question before the Court was whether Florida’s death sentencing scheme--which Hurst contends does not require unanimity in the jury death recommendation or in the finding of underlying aggravating factors--violates the Sixth and/or Eighth Amendments in light of the Court’s 2002 decision Ring v. Arizona, which requires that the aggravating factors necessary for imposition of a death sentence be found by a jury.  The Florida Supreme Court upheld Hurst’s death sentence.

By a vote of 8-1, the Supreme Court reversed the judgment of the Florida Supreme Court and remanded the case, holding that Florida’s capital sentencing scheme did violate the Sixth Amendment in light of Ring. Justice Sotomayor’s opinion for the Court was joined by the Chief Justice and Justices Scalia, Kennedy, Thomas, Ginsburg, and Kagan. Justice Breyer filed an opinion concurring in the judgment. Justice Alito filed a dissenting opinion.

To discuss the case, we have Jack Park, who is Of Counsel with Strickland Brockington Lewis LLP.
 

Hurst v. Florida - Post-Argument SCOTUScast

SCOTUScast 11-7-15 featuring Jack Park
John J. Park, Jr. November 07, 2015

On October 13, 2015, the Supreme Court heard oral argument in Hurst v. Florida.  Timothy Lee Hurst was convicted of murdering his co-worker and sentenced to death after a jury recommended that penalty by a vote of 7-5.  The question before the Court here is whether Florida’s death sentencing scheme--which Hurst contends does not require unanimity in the jury death recommendation or in the finding of underlying aggravating factors--violates the Sixth or Eighth Amendments in light of the Court’s 2002 decision Ring v. Arizona, which holds that the aggravating factors necessary for imposition of a death sentence be found by a jury. 

To discuss the case, we have Jack Park, who is Of Counsel with Strickland Brockington Lewis LLP.

Downsides of Civil Juries - Podcast

Litigation Practice Group Podcast
Renée Lettow Lerner, Suja Thomas September 25, 2015

As with many things in life and in the law, there are pros and cons. This program will focus on that premise with civil juries. Proponents argue that the civil jury system, with jurors drawn from the general public, represents the values and judgment of the public in individual cases, and that deliberations among those same jurors generally lead to just results. Critics argue that complex cases should be decided by judges or special masters rather than lay jurors who cannot properly comprehend the complexities of some cases, that jurors are more susceptible to what should be unconvincing arguments by particularly persuasive attorneys, or that juries otherwise reach conclusions sometimes not supported by law. There is also concern that verdicts by juries do not permit thorough appeal on the merits. The civil jury has been virtually abolished in every other common law country. Should the system be reexamined? Is it in need of updating? Our experts answered these and other questions.

Featuring:

  • Prof. Renée Lerner, Professor of Law, The George Washington University Law School
  • Prof. Suja Thomas, Professor, University of Illinois College of Law