Plead the Fifth is a platform for attorneys to talk about the jurisprudence of the Fifth Circuit Court of Appeals. In each episode, we pick several newly issued cases from the docket, and we invite experienced appellate attorneys to discuss the significance of those cases. Our discussions focus on issues that relate to civil rights and the criminal justice reform.
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...
29 Jun 2022
"Oops.", says Justice Willett.
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. ...
13 May 2022
"May I search your phone, with good faith?"
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 gu...
14 Mar 2022
"Do I need to listen to the Supreme Court?" The Fifth Circuit Has Doubts.
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 pow...
31 Jan 2022
A Retirement and A Resignation
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 hi...
21 Nov 2021
COVID-19 is not that big of a deal, according to the Fifth Circuit
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,...
30 Oct 2021
Abortion, Standing, and the "Audition" for the Supreme Court
In this episode, we talked about the Fifth Circuit's rulings on Texas's controversial legislation, the SB8. SB8 makes every woman who seeks abortion "sui-able" by any private citizen for damages over 10,000, and attorneys' fees. The Fifth Circuit refused to stay the enforcement of SB8, based on a classic Article III standing argument, which is the lack of enforcement connection with the defendants. We also talked about the Fifth Circuit's dynamic after the confirmation of Justice Barre...
9 Aug 2021
A Constitutional Crisis, or a Classic Lawyer's Drama?
Several attorneys filed lawsuits against the State Bar of Texas and the State Bar of Louisiana, alleging that some bar activities are overly political and ideological, which violated their First Amendment rights. The challenged bar activities are primarily initiatives regarding diversity, access to justice, and immigration issues. While the Fifth Circuit recognized the constitutional issues in these cases, the Court upheld the majority of the bar activities, concluding that those acti...
9 May 2021
The Federal Sentencing Guideline: a Non-Mandatory Dilemma
In this episode, we are going to review five recent Fifth Circuit Cases regarding the federal sentencing guideline. These cases address issues that frequently occur at the sentencing phase and at appeals, such as relevant conduct, plain error review, etc. Speakers: Joel Page, Chief of Appeals of the Federal Public Defender's Office - NDTX Tim Crooks, Former Chief of Appeals of the Federal Public Defender's Office - SDTX Leo Yu (moderator), Sr. Assistant City Attorney of Da...
18 Mar 2021
Big changes in FLSA, and another sad story about the death penalty
In this episode, we are going to cover six recently issued public opinions. Three of them are from the court's civil docket, and they are regarding the Court's new jurisprudence on employment and labor law and the federal civil procedure. The three cases from the criminal docket involve the death penalty and the Fourth Amendment. Speakers: Joel Page, Federal Public Defender's Office (NDTX) Raffi Melkonian, Wright Close and Barger, LLP. Leo Yu, Dallas City Attorney's Office - Crea...
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