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Robert McCoy was arrested for three murders in 2008. After being found indigent, the court appointed him a public defender. In 2009, McCoy made a motion to remove his public defender because he was not convinced that the attorney was arguing for his innocence. After the court granted his motion, McCoy represented himself until he found a new attorney to present his case. The new counsel advised McCoy to take a plea deal. Throughout his representation by both the public defender, and the new counsel, and when he was representing himself, he had consistently maintained that he was innocent of the murders.
McCoy subsequently refused to take a plea deal, and his counsel overrode his veto and notified him that they would be conceding his guilt in arguing for verdicts of second degree murder rather than the first-degree murders as originally charged. McCoy attempted to have his counsel discharged, but the court denied his motion. The jury found him guilty on three first degree murder charges, and recommended the death penalty. McCoy appealed, and the Louisiana Supreme Court denied, affirming the convictions of the lower court. The court reasoned the concession of guilt was a strategic decision meant for the betterment of the client, and that therefore the concession was not akin to abdicating a defense.
The question before the court is, when a defense counsel chooses to concede a criminal defendant’s guilt over the that defendant’s express objections, does that violate the defendant’s sixth amendment right to assistance of counsel?
Jay Schweikert attended the oral argument and joins us to discuss the case.
Featuring:
Jay Schweikert, Policy Analyst, Project on Criminal Justice, Cato Institute.

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In two recently filed lawsuits conservative organizations have complained that Google has restricted their access to readers. Gab, which provides its own site for conservative and alt right voices, complained when Google refused to include Gab’s app in its app store. Per Gab, Google’s true reason for this was to stymie Gab’s competition with Google’s business partner Twitter, violating the antitrust laws. Prager University complained that Google and YouTube unlawfully censored its educational videos by restricting their availability to younger viewers. Prager asserts that its videos are fully appropriate for younger viewers and that Google/YouTube’s real objection is to their admittedly conservative point of view. PragerU’s counsel, former California governor Pete Wilson, asserts that this “is speech discrimination plain and simple, censorship based entirely on unspecified ideological objection to the message or on the perceived identity and political viewpoint of the speaker” and thus violates both the First Amendment and California law.
At the same time Google and Facebook assert they are free to run their private businesses as they deem appropriate. They also face intensive pressure from American politicians and foreign governments to moderate their platforms. Facebook and Google were called before a committee of the House of Representatives, which assailed them for doing too little about “fake news” on their sites. In Germany, Facebook was recently compelled to remove a post critical of Islamic migrants.
This Teleforum will consider the obligations, if any, that American law, including the antitrust laws and the First Amendment, place on popular social media outlets. It will consider whether they can, or can be required to, restrict online content that some deem objectionable.

Featuring:

Prof. Thomas C. Arthur, L. Q. C. Lamar Professor of Law, Emory University School of Law

Prof. Eric Goldman, Professor of Law, Santa Clara University School of Law, Co-Director, High Tech Law Institute & Supervisor, Privacy Law Certificate


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Besides absolutists of the right (the tsar and his adherents) and left (Lenin and his fellow Bolsheviks), the Russian political landscape in 1917 featured moderates seeking liberal reform and a rapid evolution towards a constitutional monarchy. Vasily Maklakov, a lawyer, legislator and public intellectual, was among the most prominent of these, and the most articulate and sophisticated advocate of the rule of law, the linchpin of liberalism. He advocated a wide range of reforms, especially in the realms of religious freedom, national minorities, judicial independence, citizens’ judicial remedies, and peasant rights.
This book, written by D.C. Court of Appeals Judge Stephen F. Williams, tells the story of Maklakov’s efforts and his analysis of the reasons for their ultimate failure. It is thus, in part, an example for movements seeking to liberalize authoritarian countries today―both a warning and a guide.

Featuring:
Hon. Stephen F. Williams, Senior United States Circuit Judge, United States Court of Appeals for the District of Columbia Circuit
Prof. Julia Fromholz, Director, Rule of Law & Governance Program, Arizona State University, Sandra Day O’Connor College of Law

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Join us in a discussion with our experts, Professor Chris Bonneau and Professor Scott Gaylord, as we review The Case for Partisan Judicial Elections, a new white paper from Professor Bonneau that argues partisan judicial elections are the best way to select state judges. This paper is the first in a series of papers commissioned by the Federalist Society on the leading methods of state judicial selection.
Featuring:
Prof. Chris W. Bonneau, Associate Professor of Political Science, University of Pittsburgh
Prof. Scott W. Gaylord, Professor of Law, Elon University School of Law
Peter Bisbee, The Federalist Society (Moderator)
Teleforum calls are open to all dues paying members of the Federalist Society. To become a member, sign up here. As a member, you should receive email announcements of upcoming Teleforum calls which contain the conference call phone number. If you are not receiving those email announcements, please contact us at 202-822-8138.

Last month, in a challenge brought by the Freedom from Religion Foundation, a Wisconsin federal district court ruled that the “parsonage allowance,” 26 U.S.C. § 107(2), violates the federal Establishment Clause. Enacted in 1954, the “parsonage allowance” allows clergy to exclude from gross income a rental allowance received as part of his or her compensation. In Gaylor v. Mnuchin, the district court found that 1) the allowance lacked a secular purpose or effect and 2) a reasonable observer would perceive it to be a governmental endorsement of religion. The case is likely to be appealed to the Seventh Circuit in the next month and could be heard by the United States Supreme Court in a future term.
This Teleforum will examine the nuts and bolts of the parsonage allowance, including its history as well as the practical impact that its loss would impose on religious congregations nationwide. The primary arguments for and against its constitutionality will be explored.
Featuring:
Prof. Thomas C. Berg, James L. Oberstar Professor of Law and Public Policy, University of St. Thomas School of Law
John Van Drunen, Executive Vice President, General Counsel, Evangelical Council for Financial Accountability (ECFA)
Michael Martin, Vice President and Legal Counsel, Evangelical Council for Financial Accountability (ECFA)

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A current lawsuit in federal court in Nevada is endeavoring to stop a recall election for several Nevada Senators. The lawsuit argues that recall elections necessarily violate Section 2 of the Voting Rights Act because racial and language minority Americans pay less attention to public issues and have a harder time participating in a second election, and therefore recall elections have a disparate statistical impact on racial and ethnic minorities. The Public Interest Legal Foundation joined the defendants to help Nevada and is arguing that the language minority provisions of the Voting Rights Act go impermissibly beyond Congressional powers to protect against racial discrimination in the 15th Amendment, and that the Voting Rights Act does not allow for a disparate impact analysis to establish liability.

Featuring:
Christian Adams, General Counsel, Public Interest Legal Foundation, Election Law Center

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On Monday, January 8, ExxonMobil filed a petition to depose officials of the cities and counties in California that are suing to hold Exxon liable for necessary infrastructure improvements and damages caused by the effects of global climate change. Exxon’s filing alleges that these California jurisdictions that previously asserted their imminent harm from climate change did not disclose this on their bond offerings. Hon. Boyden Gray joins us to discuss the newest developments in the Exxon litigation.
Featuring:
Hon. C. Boyden Gray, Founding Partner, Boyden Gray & Associates
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On Thursday, January 4th, Attorney General Jeff Sessions withdrew a Justice Department memo issued in 2013 by the Obama Department of Justice that told federal prosecutors to focus on prosecuting marijuana dealers who sold to children, committed violence, and did their business in states that had not legalized marijuana, rather than those states that had legalized the drug. Paul Larkin of the Heritage Foundation and Ilya Shapiro of CATO joins Moderator Marc Levin to discuss the withdrawal.
Featuring:
Paul J. Larkin Jr., Senior Legal Research Fellow, The Meese Center for Legal and Judicial Studies, The Heritage Foundation
Ilya Shapiro, Senior Fellow in Constitutional Studies, Cato Institute.
Moderator: Marc A. Levin, Vice President, Criminal Justice Policy, and Policy Director, Right on Crime, Texas Public Policy Foundation.
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On January 2, 2018 the Federal Emergency Management Agency (FEMA) announced that it would expand access to disaster relief to private nonprofit houses of worship. Previously, following natural disasters, churches, synagogues, and other houses of worship were barred from relief grants that were available for secular non-profits through the Federal Emergency Management Agency (FEMA). While houses of worship often use their facilities as FEMA staging grounds for relief efforts, they themselves were not eligible for grants under FEMA’s Public Assistance grant program. In September 2017, following Hurricane Harvey, Harvest Family Church joined with two other churches to sue FEMA in a federal court in Texas, arguing that the churches should not be denied access to FEMA grants simply because they are houses of worship. Under the precedent set in Trinity Lutheran, the churches argued that denial of equal access to these grants constitutes discrimination in violation of the Free Exercise Clause of the First Amendment.
The churches filed an emergency request for injunctive relief, and FEMA conceded the merits but asked for more time to revise its policy while still refusing to grant churches equal treatment. In December, the district court ruled against the churches, and they filed an emergency appeal to the Fifth Circuit requesting an injunction pending appeal and an expedited appeal. The Fifth Circuit granted an expedited appeal and denied an injunction.
Diana Verm of Becket will join us to discuss where the case stands after the FEMA announcement.
Featuring:
Diana Verm, Counsel, The Becket Fund for Religious Liberty

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Prosecutors cannot be sued for injuries caused by their own misconduct. For example, even if a prosecutor deliberately withholds exculpatory evidence in violation of professional ethics and a defendant’s constitutional rights, and this willful misconduct results in an innocent person spending decades behind bars for a crime of which they are subsequently exonerated—the prosecutor remains immune from civil liability.
The policy of absolute prosecutorial immunity comes not from Congress but from the Supreme Court, which took 42 U.S.C. § 1983’s command that “every person” who, acting under color of law, violates the rights of another, “shall be liable to the party injured,” and added “except for prosecutors.” Was the Court’s originalist reasoning sound? Would a different policy open the floodgates and subject prosecutors to endless litigation, as the majority feared? And are there really other ways of ensuring proper accountability for some of the most powerful actors in our system of government?
This Teleforum considers whether it is time to reconsider absolute prosecutorial immunity and, if so, how we might balance the need for accountability and redress with the very real concerns of prosecutorial independence and efficacy.
Featuring:
Moderator: John G. Malcolm, Vice President for the Institute for Constitutional Government, The Heritage Foundation
Clark Neily, Vice President for Criminal Justice, Cato Institute.
Geoffrey D. Wilson, Director At-Large, Central District of California, National Association of Assistant U.S. Attorneys
Teleforum calls are open to all dues paying members of the Federalist Society. To become a member, sign up here. As a member, you should receive email announcements of upcoming Teleforum calls which contain the conference call phone number. If you are not receiving those email announcements, please contact us at 202-822-8138.