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Criminal Law & Procedure Practice Group Podcast

During oral argument in Glossip v. Gross, Justice Samuel Alito pointed to what he called "a guerrilla war against the death penalty, which consists of efforts to make it impossible for the states to obtain drugs that could be used to carry out capital punishment with little, if any, pain[.]"  The goal of these efforts, apparently, is to facilitate constitutional challenges to the death penalty by making its implementation more painful.

This teleforum analyzed whether the efforts by death penalty opponents to pressure drug manufacturers to stop supplying drugs for use in execution--resulting in states resorting to execution methods that are more painful--are circumventing the democratic process in debating the death penalty. Specifically, our experts debated the methods used by those in opposition to the death penalty to shut down access to less painful execution methods, the propriety of complicating the death penalty's implementation, the relationship between that complication and constitutional challenges to the death penalty, and whether this amounts to treating the democratic process like a one-way ratchet: only permitting the people to choose more painful means of implementing executions so as to facilitate legal challenges to the death penalty.

  • Mr. Kent Scheidegger, Legal Director & General Counsel, Criminal Justice Legal Foundation
  • Prof. John Bessler, Professor of Law, University of Baltimore School of Law
     
Criminal Law & Procedure Practice Group Podcast

The Supreme Court issued a number of notable opinions in the area of criminal law during the recently concluded term. Members of the Federalist Society’s Criminal Law & Procedure Practice Group Executive Committee offered their analysis on recent developments in the Supreme Court’s criminal law jurisprudence and fielded questions from a call-in audience.

  • John G. Malcolm, Director and Ed Gilbertson and Sherry Lindberg Gilbertson Senior Legal Fellow, Edwin Meese III Center for Legal and Judicial Studies, The Heritage Foundation
  • Dean Mazzone, Senior Trial Counsel, Criminal Bureau, Massachusetts Attorney General’s Office
SCOTUScast 7-14-15 featuring Joshua Skinner

On June 22, 2015, the Supreme Court decided Kingsley v. Hendrickson. The central question in this case was whether, to prove an excessive force claim brought by a pretrial detainee against several jail officers, the detainee must show that the officers were subjectively aware that their use of force was unreasonable, or simply that the officers’ use of that force was objectively unreasonable. 

In an opinion delivered by Justice Breyer, the Supreme Court held by a vote of 5-4 that the detainee needed to show only that the officers’ use of force was objectively unreasonable.

Justices Kennedy, Ginsburg, Sotomayor and Kagan joined Justice Breyer’s opinion for the Court. Justice Scalia filed a dissenting opinion in which Chief Justice Roberts and Justice Thomas joined. Justice Alito also filed a dissenting opinion. The judgment of the Seventh Circuit was vacated and the case remanded.

To discuss the case, we have Joshua A. Skinner, who is an Attorney at Fanning Harper Martinson Brandt & Kutchin, P.C., in Dallas Texas.

Washington, DC Lawyers Chapter

On July 10, 2015, Miguel Estrada of Gibson Dunn & Crutcher LLP delivered the Annual Supreme Court Round Up at The Mayflower Hotel in Washington, DC.

Featuring:

  • Mr. Miguel Estrada, Gibson Dunn & Crutcher LLP
  • Introduction: Mr. Douglas R. Cox, Gibson Dunn & Crutcher LLP

The Mayflower Hotel
Washington, DC

SCOTUScast 7-8-15 featuring Ronald Eisenberg

On June 18, 2015, the Supreme Court issued its decision in Davis v. Ayala. The issue in this case was whether Ayala was entitled to federal habeas relief because the judge in his capital murder trial, when responding to Ayala’s objection that the prosecution used its peremptory challenges to strike potential jurors based on race, excluded Ayala from the hearing during which the judge considered the prosecution’s explanation for the peremptory challenges.  The Ninth Circuit granted Ayala’s petition for habeas relief.

In an opinion delivered by Justice Alito, the Court reversed the Ninth Circuit by a vote of 5-4 and remanded the case.  Any federal constitutional error that may have occurred as a result of the exclusion of Ayala from the hearing, the Supreme Court held, was harmless with respect to all seven prospective jurors who had been stricken.

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

To discuss the case, we have Ronald Eisenberg, who heads the Law Division of the Philadelphia District Attorney’s Office.