Plead the Fifth (Cir.‪)‬ Leo Yu

In this episode, we discussed a recent case U.S. v. Seekins, in which the federal public defender attempted to push the Fifth Circuit to revisit the scope of interstate commerce in the criminal justice context. By a close vote (7-9), the Fifth Circuit refused to open this door. However, Justice Ho, in his dissenting opinion, laid out a blueprint for the defendant to get the the Supreme Court's attention. Will this case be the case for the conservative Supreme Court to cut back on the scope of interstate commerce? Joel Page, the federal defender who prepared and argued this case, offered his thoughts in this episode. 

Host: Leo Yu (SMU Law)
Guest: Joel Page (Appellate Chief of the Federal Public Defender's Office (NDTX))

In Shepperd v. United States, an attorney represented his client, the criminal defendant, and also the government's key witness at the same time. Two weeks before trial, this conflict of interest was finally made known to the defendant, who immediately obtained new counsel. The new counsel informed the trial court about the conflict and requested a continuance of the trial. The trial court, however, held that the trial must proceed as planned. The defendant got 30 years from the trial. 

The case got appealed to the Fifth Circuit. Justice Willett, writing for the Court, was rather assumed by this clear conflict of interest. He actually wrote "Oops." as his reaction in this opinion. Nevertheless, the Court refused to vacate the verdict, but remanded the case back to the trial court for an evidentiary hearing. 

Host: Prof. Leo Yu, SMU School of Law 
Guest: Prof. Pamela Metzger, SMU School of Law, Director of the Deason Criminal Justice Reform Center 

Can a police officer search a criminal suspect's cell phone in full, when the only charge in the warrant was drug possession, and the affidavit provided barebone justification? This is the question the Fifth Circuit was presented in U.S. v. Morton. The Morton case presents an issue that is not fully resolved by the Supreme Court - what kind of protection a cell phone deserves under the Fourth Amendment? Treat it like a person's home? Or, more than a home?

We have the privilege to have two guest attorneys who are directly involved in this case to share some insights: Brandon Beck from the Federal Public Defender's Office, who argued this case at the Fifth Circuit, and Aisha Dennis from the National Association of Criminal Defense Lawyers. 

When the U.S. Supreme Court remands a case back to a circuit court, how much room does the circuit court have to "play around"? The Fifth Circuit's response is "a lot".  

The U.S. Supreme Court remanded the SB8 case back to the Fifth Circuit and allowed claims against Texas health agencies to proceed. The Fifth Circuit is not pleased. Instead of following the Supreme Court's remand order, the Fifth Circuit certified a question - whether the state health agencies have the enforcement power under SB8 - to the Texas Supreme Court. This new method ignited a lot of fires between Justice Edith Jones and Justice Stephen Higginson.

Host: Prof. Leo Yu, SMU Dedman School of Law
Guest: Prof. Brian Owsley, UNT Dallas School of Law.

In this episode, we talked about Justice Breyer's retirement and Justice Gregg Costa's unexpected resignation from the Fifth Circuit. Justice Breyer's retirement announcement proposes an opportunity to the Biden administration and the replacement strategy is rather clear - Biden has determined to deliver his campaign promise to nominate an African American woman to fill the seat. But what about Costa's unorthodox resignation? At the age of 49, Costa, a young Obama appointee, announced his resignation and will leave the Court in August. What does this resignation mean to the hot bench at the Fifth Circuit? 

Host: Leo Yu, Clinical Professor at SMU Law
Guests: Brian Owsley, Associate Professor at UNT Law; Joel Page, Appellate Chief of the Federal Public Defender's Office (NDTX)

On November 5, 2021, the Occupational Safety and Health Administration (OSHA) issued an Emergency Temporary Standard (ETS), which required employers who have more than 100 employees to mandate vaccination for their employees. A variety of plaintiffs requested a stay from the Fifth Circuit, and the Fifth Circuit granted a stay on November 6. On November 13, the Court issued a longer opinion, affirming its previous stay, and extended the stay till the final judgment.  BTS Holdings v. OSHA, (No. 21-60845, November 13, 2021).

In this episode, we analyzed the Fifth Circuit's jurisprudence  toward administrative actions, and we also discussed the Court's  general position toward COVID 19.
Speakers:

Brian Owsley, University of North Texas School of Law 
Leo Yu, Southern Methodist University School of Law