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Criminal Law & Procedure

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Pena-Rodriguez v. Colorado: Post Decision Recap - Podcast

Criminal Law & Procedure Practice Group Podcast
John C. Richter March 24, 2017

On March 6, 2017, the Supreme Court released its 5-3 decision in Pena-Rodriguez v. Colorado. The majority opinion, written by Justice Kennedy, reveresed and remanded the case holding that when there is a juror's clear statement that he or she relied on racial stereotypes or animus to convict a criminal defendant, the Sixth Amendment requires that the trial court consider the evidence of the statement and any resulting denial of the jury trial guarantee. John Richter, Partner at King & Spalding, joined us to discuss the important ramifications of the Court's striking decision. 

Featuring:

  • John Richter, Partner, King & Spalding

Pena-Rodriguez v. Colorado: Post Decision Recap

Criminal Law & Procedure Practice Group Teleforum
John C. Richter March 23, 2017

On March 6, 2017, the Supreme Court released its 5-3 decision in Pena-Rodriguez v. Colorado. The majority opinion, written by Justice Kennedy, reveresed and remanded the case holding that when there is a juror's clear statement that he or she relied on racial stereotypes or animus to convict a criminal defendant, the Sixth Amendment requires that the trial court consider the evidence of the statement and any resulting denial of the jury trial guarantee. John Richter, Partner at King & Spalding, will join us to discuss the important ramifications of the Court's striking decision. 

Featuring:

  • John Richter, Partner, King & Spalding

Unwarranted: Policing Without Permission by Barry Friedman - Podcast

Criminal Law & Procedure Practice Group Podcast
Barry Friedman, Orin S. Kerr, John G. Malcolm March 15, 2017

In June 2013, documents leaked by Edward Snowden sparked widespread debate about secret government surveillance of Americans. Just over a year later, the shooting of Michael Brown, a black teenager in Ferguson, Missouri, set off protests and triggered concern about militarization of law enforcement and discriminatory policing. In Unwarranted, Barry Friedman argues that these two seemingly disparate events are connected―and that the problem is not so much the policing agencies as it is the rest of us. We allow these agencies to operate in secret and to decide how to police us, rather than calling the shots ourselves. And the courts, which we depended upon to supervise policing, have let us down entirely.

The book's author, Professor Barry Friedman, the Jacob D. Fuchsberg Professor of Law at New York University School of Law, Professor Orin Kerr the Fred C. Stevenson Research Professor of Law at The George Washington University Law School, and John Malcolm, Director and Senior Legal Fellow at the Edwin Meese III Center for Legal and Judicial Studies for the Heritage Foundation, joined us to discuss this new book. 

Featuring:

  • Prof. Barry Friedman, Jacob D. Fuchsberg Professor of Law, New York University School of Law
  • Prof. Orin Kerr, Fred C. Stevenson Research Professor of Law, The George Washington University Law School
  • ModeratorJohn 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

Medical Marijuana & the Second Amendment

Short video featuring Joseph Greenlee
Joseph Greenlee March 10, 2017

Should medical marijuana use limit Second Amendment rights? Joseph Greenlee, Second Amendment attorney, explains the contradiction in state and federal law when it comes to medical marijuana use and gun rights. 

Unwarranted: Policing Without Permission by Barry Friedman

Criminal Law & Procedure Practice Group Teleforum
Barry Friedman, Orin S. Kerr, John G. Malcolm March 03, 2017

In June 2013, documents leaked by Edward Snowden sparked widespread debate about secret government surveillance of Americans. Just over a year later, the shooting of Michael Brown, a black teenager in Ferguson, Missouri, set off protests and triggered concern about militarization of law enforcement and discriminatory policing. In Unwarranted, Barry Friedman argues that these two seemingly disparate events are connected―and that the problem is not so much the policing agencies as it is the rest of us. We allow these agencies to operate in secret and to decide how to police us, rather than calling the shots ourselves. And the courts, which we depended upon to supervise policing, have let us down entirely.

The book's author, Professor Barry Friedman, the Jacob D. Fuchsberg Professor of Law at New York University School of Law, Professor Orin Kerr the Fred C. Stevenson Research Professor of Law at The George Washington University Law School, and John Malcolm, Director and Senior Legal Fellow at the Edwin Meese III Center for Legal and Judicial Studies for the Heritage Foundation, will join us to discuss this new book. 

Featuring:

  • Prof. Barry Friedman, Jacob D. Fuchsberg Professor of Law, New York University School of Law
  • Prof. Orin Kerr, Fred C. Stevenson Research Professor of Law, The George Washington University Law School
  • ModeratorJohn 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

Supreme Court Preview: Packingham v. North Carolina - Podcast

Criminal Law & Procedure Practice Group Podcast
Jonathan Sherman, Melissa Arbus Sherry February 23, 2017

On February 27, the Supreme Court will hear oral argument in Packingham v. North Carolina. This First Amendment case deals with whether a state may bar citizens from accessing social media sites like Facebook and Twitter. A North Carolina state law makes it a felony for any person on the state's registry of former sex offenders to "access" a wide array of popular websites that enable communications among users if the site is known to allow minors to have accounts. The statute does not require the state to prove the defendant has actually had contact with a minor, intended to do so, or accessed a website for any illicit or improper purpose. In the trial court, the Defendant was convicted of violating the law for a Facebook post in which he celebrated the dismissal of a traffic ticket, declaring "God is Good!" Some contend that the law amounts to a sweeping, overbroad, and vague ban on protected speech untailored to any legitimate interest and is unjustified by any compelling need.

Jonathan Sherman, Partner at Boies Schiller Flexner and Melissa Arbus Sherry, Partner at Latham & Watkins will provide a preview of this interesting case.

Featuring:

  • Jonathan Sherman, Partner at Boies Schiller Flexner
  • Melissa Arbus Sherry, Latham & Watkins

Supreme Court Preview: Packingham v. North Carolina

Criminal Law & Procedure Practice Group Teleforum
Jonathan Sherman, Melissa Arbus Sherry February 22, 2017

On February 27, the Supreme Court will hear oral argument in Packingham v. North Carolina.  This First Amendment case deals with whether a state may bar citizens from accessing social media sites like Facebook and Twitter. A North Carolina state law makes it a felony for any person on the state's registry of former sex offenders to "access" a wide array of popular websites that enable communications among users if the site is known to allow minors to have accounts. The statute does not require the state to prove the defendant has actually had contact with a minor, intended to do so, or accessed a website for any illicit or improper purpose. In the trial court, the Defendant was convicted of violating the law for a Facebook post in which he celebrated the dismissal of a traffic ticket, declaring "God is Good!" Some contend that the law amounts to a sweeping, overbroad, and vague ban on protected speech untailored to any legitimate interest and is unjustified by any compelling need. 

Jonathan Sherman, Partner at Boies Schiller Flexner and Melissa Arbus Sherry, Partner at Latham & Watkins will provide a preview of this interesting case.

Featuring:

  • Jonathan Sherman, Partner at Boies Schiller Flexner
  • Melissa Arbus Sherry, Latham & Watkins

Criminal Regulatory Statutes: Is “Deliberate Indifference” Sufficient Mens Rea For A “Knowing" Violation? Case Update: Farha v. United States - Podcast

Criminal Law & Procedure Practice Group Podcast
Paul D. Kamenar, Jeff Lamken, John G. Malcolm February 15, 2017

Farha v. United States, currently pending on a petition for writ of certiorari to the U.S. Supreme Court, is a case study raising basic notions of due process, fair notice, the rule of lenity, mens rea, and whether administrative and civil remedies would be more appropriate.  What began as a highly publicized raid by some 200 FBI agents on a Florida health care company over an accounting dispute ended in the indictment, conviction, and prison sentences for the Wellcare executives for fraud.  

On appeal, where the case was captioned Clay v. United States, the U.S. Court of Appeals for the Eleventh Circuit upheld the convictions over the objections of the defendants that the jury instruction impermissibly allowed the jury to convict if the defendants were “deliberately indifferent” to the law’s requirement as opposed to finding a “knowing” violation as the statute requires.  The Supreme Court in 2011, in Global-Tech Appliances, a civil case involving patent infringement, held that "knowledge" cannot include "deliberate indifference" to show sufficient mens rea to establish infringement. Accordingly, the cert petition, filed by Seth Waxman of WilmerHale, seeks to have the Court rule that the jury instructions should require a higher mens rea standard, all the more so in a criminal case. 

This case is particularly important for all regulated industries, where there are numerous laws and complex regulations governing conduct subject to administrative, civil, and criminal enforcement.

Featuring:

  • Paul Kamenar, Washington, D.C. Public Policy Attorney and Senior Fellow, Administrative Conference of the U.S.
  • Jeff Lamken, Partner, MoloLamken
  • ModeratorJohn 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

 

 

Criminal Regulatory Statutes: Is “Deliberate Indifference” Sufficient Mens Rea For A “Knowing" Violation? Case Update: Farha v. United States

Criminal Law & Procedure Practice Group Teleforum
Paul D. Kamenar, Jeff Lamken, John G. Malcolm February 14, 2017

Farha v. United States, currently pending on a petition for writ of certiorari to the U.S. Supreme Court, is a case study raising basic notions of due process, fair notice, the rule of lenity, mens rea, and whether administrative and civil remedies would be more appropriate.  What began as a highly publicized raid by some 200 FBI agents on a Florida health care company over an accounting dispute ended in the indictment, conviction, and prison sentences for the Wellcare executives for fraud.  

On appeal, where the case was captioned Clay v. United States, the U.S. Court of Appeals for the Eleventh Circuit upheld the convictions over the objections of the defendants that the jury instruction impermissibly allowed the jury to convict if the defendants were “deliberately indifferent” to the law’s requirement as opposed to finding a “knowing” violation as the statute requires.  The Supreme Court in 2011, in Global-Tech Appliances, a civil case involving patent infringement, held that "knowledge" cannot include "deliberate indifference" to show sufficient mens rea to establish infringement. Accordingly, the cert petition, filed by Seth Waxman of WilmerHale, seeks to have the Court rule that the jury instructions should require a higher mens rea standard, all the more so in a criminal case. 

This case is particularly important for all regulated industries, where there are numerous laws and complex regulations governing conduct subject to administrative, civil, and criminal enforcement.

Featuring:

  • Paul Kamenar, Washington, D.C. Public Policy Attorney and Senior Fellow, Administrative Conference of the U.S.
  • Jeff Lamken, Partner, MoloLamken
  • ModeratorJohn 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