Overview
The Supreme Court will hear several interesting criminal cases in its upcoming Term. Below are two cases that might be of special interest to criminal trial lawyers.
In Villarreal v. Texas, No. 24-557, the Court will consider whether a trial court violates a defendant's Sixth Amendment right to counsel by prohibiting the defendant and his counsel from discussing the defendant's testimony during an overnight recess. In Villarreal, the Texas Court of Criminal Appeals (the state's highest court for criminal matters) upheld a trial judge's order that permitted Villarreal and his counsel to discuss everything except Villarreal's testimony during an overnight recess. In resolving the question whether the trial court's order was appropriate, the Supreme Court will have to reconcile two of its own precedents: Geders v. United States, 425 U.S. 80 (1976), in which the Court held that an overnight no-discussion order between a defendant's direct and cross-examination unconstitutionally interfered with the defendant's Sixth Amendment right to counsel, and Perry v. Leeke, 488 U.S. 272 (1989), which held that a no-discussion order during a 15-minute break in the defendant’s testimony did not offend the defendant's right to counsel.
In Ellingburg v. United States, No. 24-482, the Court will resolve whether restitution ordered in a criminal case under the Mandatory Victim Restitution Act (MVRA) is a civil remedy or is instead "punishment" subject to the Ex Post Facto Clause, which prohibits the government from applying a penal law retroactively. Ellingburg’s sentence under the Victim and Witness Protection Act (the MVRA's predecessor) required him to make restitution payments for 20 years from the entry of his criminal judgment. But the government continued to collect restitution payments after that original twenty-year period expired, on the theory that the MVRA requires payment of restitution for twenty years from the date of a defendant's release from prison. The US Court of Appeals for the Eighth Circuit sanctioned the government's continued collection efforts under the belief that restitution is civil, not penal, and is therefore not subject to the Ex Post Facto Clause. The Eighth Circuit's decision aligned with the law of the Seventh Circuit but diverged from four other courts of appeals to consider the question. The answer to the question whether restitution is remedial or penal will have obvious consequences in this case: if restitution is penal, then the government cannot continue to collect restitution payments from Ellingburg under a restitution scheme that was not in effect when his underlying offense was committed.
Stay tuned for further updates about these cases and other criminal cases of interest.
