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Supreme Court will consider scope of Sixth Amendment right to counsel during trial recess

By Debra Cassens Weiss

April 15, 2025, 2:37 pm CDT

The U.S. Supreme Court has agreed to decide whether a criminal defendant’s Sixth Amendment right to counsel was violated when a judge banned him from discussing his ongoing testimony when meeting with his lawyers during an overnight trial recess.

The Supreme Court agreed to hear the case of David Asa Villarreal on April 7, report SCOTUSblog, Law360 and Law.com.

Villarreal was the only defense witness at his trial for fatally stabbing his boyfriend Aaron Estrada, according to prior coverage by SCOTUSblog. He was convicted of murder and sentenced to 60 years in prison.

Two prior Supreme Court decisions have led to a lower-court split on whether defendants have a Sixth Amendment right to talk to their lawyers about their testimony when it is interrupted by an overnight break, according to the cert petition and a brief opposing cert filed by prosecutors in Texas.

In Geders v. United States, a decision in 1976, the Supreme Court ruled that a defendant’s Sixth Amendment rights are violated when a judge prohibits the defendant from conferring with their lawyer during an overnight break.

In 1989, the Supreme Court ruled in Perry v. Leeke that a defendant’s Sixth Amendment rights are not violated by a ban on consulting with their lawyer during a 15-minute recess between direct and cross-examination.

Six federal appeals courts and three state supreme courts have held that defendants have a right to confer with a lawyer about testimony during an overnight recess, according to the cert petition. The top state supreme courts or criminal courts in four other states—including Texas, in a ruling against Villarreal—have reached the opposite conclusion, according to the cert petition.

The case is Villarreal v. Texas.

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Fourteen years ago, I wrote an article for a business journal that summarized a dinner conversation I had with my 4-year-old daughter. She asked me to explain “What is a re-sezz-ee-un?” By the end of our conversation, her greatest concern shining through her little green eyes was whether Santa Claus himself would be experiencing any effects of that “re-sez-ee-un.”

Much has changed since that conversation. That particular recession eventually ended, only later to be replaced by what some economists called a second one. The Cubs finally won a World Series. We sent an unmanned spacecraft to Pluto. An unprecedented world pandemic wreaked its havoc, and Donald Trump became our president, not once but twice.

My daughter has seen quite a journey as well. She became a singer, musician, artist, model, cheerleader and even an actress, playing the lead Dorothy in “The Wizard of Oz” at the Apollo Theater. She is a self-taught competitive gymnast and part of a team that made the national finals in Orlando, Florida. Perhaps most important, my little green-eyed girl grew up and graduated from high school, and she is now a college freshman trying to find her place in this crazy world.

Now we sit together, sometimes late into the evening, and we talk. She has never had any interest in becoming a lawyer, but she has always shown an interest in why I do it. Recently, she asked me a question that I haven’t heard in a while. She asked the difference between being a lawyer today and when I started many years ago.

“The difference is I don’t consider myself just a trial lawyer anymore,” I told her. “Clients once hired me to try their cases. They don’t want that today. Now they hire me to help their business avoid trials.” She looked up at the ceiling, raised her eyebrows and nodded, as if she understood me perfectly.

“Does that apply to all lawyers or just you?” Of course she would follow my answer with an even more difficult question. I had to think about that one.

The truth is that the legal industry has changed along with the rest of our world. First came cellphones. Then came the internet. Then came cellphones with internet and all the knowledge of the world instantly at our fingertips. With that came the expectation for instant satisfaction and an acute lack of patience. People want problems solved instantly, with relatively little discussion. When business owners experience unforeseen and unbudgeted issues, they want them resolved quickly. From Caterpillar to the corner restaurant, the last thing companies want is to devote their resources toward litigation. When businesses hire a lawyer, their historic desire for Perry Mason now takes a back seat to the need for Harvey Specter. Businesses no longer want to retain the best trial lawyer; they want the lawyer who can quickly fix the problem without the need for such elaborate time and expense.

This reality has resulted in a generational swing in which lawyers, just like those in other industries, are forced to adapt to be competitive. Don’t get me wrong: A trial lawyer still needs the skill and experience to try a good case; otherwise, the bluff will get challenged every time. Nevertheless, possessing excellent trial skills just isn’t the sole (or even primary) skill anymore that businesses are seeking. The real talent is solving the situation by avoiding the trial.

I believe this is true no matter what kind of trial lawyer you are. Ask an experienced personal injury lawyer how many cases insurance companies settle today compared with 10 years ago. Ask a criminal defense attorney how many accused are going to trial versus entering into a plea bargain.

Ask any business owner what he or she thinks about litigation. Don’t just ask ones who have been sued and lost; also ask those who have sued and won but didn’t consider it a victory because of the amount of legal fees they paid. I have tried hundreds of cases in my 30-year career. I have heard every criticism of our legal industry that exists, and many of them I agree with. Perhaps the worst of all is the notion that the cost of victory can be just as devastating as the agony of defeat. On the other hand, I have never received criticism from a client after we managed to avoid a trial.

I still have plenty of time left to practice law on this journey I began 30 years ago. Fortunately, my kids keep me “young at heart” and provide me with the tools to reinvent my career when needed. One thing is certain: More change lies ahead. Interest rates, government regulations and debtors’ ability to repay their loans were once easy problems to forecast, analyze and solve—but not anymore. Fortunately, I know I can always count on my daughter’s inquisitive green eyes to help me through the journey.

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Joseph VanFleet is an experienced trial lawyer, focusing his practice on small businesses and community banks in addition to Fortune 100 publicly traded entities and large-scale lenders he has always represented. He has represented clients throughout the country and in numerous complex and multidistrict cases, and he has obtained victories in well over 100 trials, appeals and alternative disputes.

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ABAJournal.com is accepting queries for original, thoughtful, nonpromotional articles and commentary by unpaid contributors to run in the Your Voice section. Details and submission guidelines are posted at “Your Submissions, Your Voice.”

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This column reflects the opinions of the author and not necessarily the views of the ABA Journal—or the American Bar Association.

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3. Parade shooter signed his trial waiver ‘Donald…

Criminal Justice

Parade shooter signed his trial waiver ‘Donald Trump;’ will it make a difference?

By Debra Cassens Weiss

March 6, 2025, 12:25 pm CST

An Illinois man accused of killing seven people and wounding 48 others at a 2022 Fourth of July parade in suburban Chicago pleaded guilty to all charges Monday, but he did not sign his name to a trial waiver.

Robert Crimo III of Illinois signed his name as “Donald Trump,” but that shouldn’t affect his oral guilty plea, legal experts told the Chicago Sun-Times.

“He can sign Mickey Mouse or Donald Trump,” Richard Kling, a professor at the Chicago-Kent College of Law at the Illinois Institute of Technology, told the newspaper. The important thing, Kling said, is the transcript of Crimo’s oral guilty plea showing that a judge “asked the magic questions, and he gave the magic answers.”

Defense lawyer Adam Sheppard agreed with that assessment but said the Trump signature could raise questions about Crimo’s ability to understand he was waiving trial.

“The fact that he used the president’s name may raise an eyebrow in terms of fitness,” Sheppard told the Chicago Sun-Times.

During the plea hearing, prosecutors summarized key evidence against Crimo in the 2022 shooting in Highland Park, Illinois, according to previous coverage by the Lake County News-Sun via the Chicago Tribune. He was spotted dropping a semiautomatic rifle covered in cloth after the shooting, DNA linked him to the crime, and he had confessed on videotape.

Still ongoing are civil lawsuits filed by victims and their families. Defendants include Crimo’s father, who sponsored his son’s Firearm Owner’s Identification card, and the Illinois State Police, which approved the application. Other defendants include Smith & Wesson and the companies that sold the weapon.

See also:

After deadly shootings, ABA House pushes for tighter gun controls

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A senior CNN employee found himself in the hot seat during the fourth day of the civil trial between the U.S. Navy veteran and the cable news network he claims defamed him in a story about his work extracting people from war-torn Afghanistan.

Taking the stand was Fuzz Hogan, who is currently employed as a senior director with CNN’s standards and practices department.

The witness played a key role in the ongoing drama; at the time the story in question aired, Hogan worked as a fact-checker and was the person responsible for clearing the facts in the story itself.

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Criminal Justice

Trial gets underway for alleged hit man accused of shooting attorney for litigant friend

By Debra Cassens Weiss

November 13, 2024, 3:10 pm CST

A Hilton Head, South Carolina, man is on trial this week for attempted murder in an April 2023 shooting of a Greenville, South Carolina, attorney.

The defendant, Travis Douglass, is accused of shooting lawyer JP Baum outside his law office in a crime carried out for a friend who was being sued by Baum’s then-law firm, the Law Offices of Truluck Thomason, WYFF 4 reports. Baum survived.

Prosecutors say Douglass’ friend, architect David Smith, was sued for $1.7 million over construction issues, according to a prior WYFF 4 story. Smith bequeathed his house to his wife in a will on the day of Douglass’ arrest and died the next day after crashing his car into a pole while traveling 105 miles per hour.

Baum’s lawyer has said he wasn’t the intended target, according to WYFF 4. Baum was the same size as another lawyer who was the subject of a Google search by Douglass, the lawyer said.

Baum feared that he was dying, he said in a statement read in court, according to the previous WYFF 4 story.

“My right lung collapsed, and blood began to fill my lungs. As I started to take what I believed was my last breaths in this world, I called my wife to tell her I was dying, and that I loved her,” according to the statement.

Evidence in the case includes video of a man getting out of a scratched RV to look at an attorney’s car and then waiting in the vehicle for three hours before the shooting, the television station reports.

Douglass had an RV with the same scratch, prosecutors say. A bullet casing was under the seat. Cell tower information and receipts also put Douglass in the vicinity of the crime.

A prosecution witness also cited Google searches by Douglass and Smith, including a search by Smith for “maximum sentence for accessory after the fact.”

Baum has left the Law Offices of Truluck Thomason and now practices with Campbell Teague, according to an online bio.

He did not immediately respond to an ABA Journal request for comment.

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Law Firms

Suit alleging Jones Day’s family-leave policy discriminates against men can go to trial, judge rules

By Debra Cassens Weiss

September 26, 2024, 10:52 am CDT

A federal judge has ruled that two former associates at Jones Day can go to trial on seven claims against the law firm, including allegations that its family-leave policy discriminates against male attorneys.

U.S. District Judge Randolph D. Moss of Washington, D.C., ruled in a brief Sept. 25 order. He temporarily sealed a decision with his reasoning to allow for proposed redactions to protect confidential business information and privacy interests of third parties.

Law360, Reuters, Law.com and Bloomberg Law have coverage.

The plaintiffs, Mark Savignac and his wife, Julia Sheketoff, had challenged Jones Day’s family-leave policy that grants 18 weeks of paid leave to new mothers who are primary caregivers but only 10 weeks to biological fathers in the same situation. The extra eight weeks for mothers are labeled disability leave, but the reality is that all biological mothers are given the extra paid time off, the lawsuit alleged.

The two lawyers say they complained about the Jones Day policies in a January 2019 email shortly after Sheketoff left the firm to become an appellate public defender. Savignac was fired three business days later.

Moss had allowed the August 2019 suit to proceed to discovery in September 2020. The former associates filed a third amended complaint in September 2022.

In his Sept. 25 order, Moss allowed claims of sex discrimination in violation of Title VII of the Civil Rights Act, the Equal Pay Act and the D.C. Human Rights Act. He also allowed claims of retaliation in violation of Title VII, the Fair Labor Standards Act as amended by the Equal Pay Act and the D.C. Human Rights Act.

He tossed claims, however, of sex discrimination based on Sheketoff’s performance review and pay and the firm’s “black box” compensation system. He also tossed claims that Jones Day interfered with Savignac’s protected right to family leave by firing him while on leave.

Savignac and Sheketoff are former law clerks for then-U.S. Supreme Court Justice Stephen Breyer.

A onetime FBI agent facing felony charges for allegedly storming the U.S. Capitol on Jan. 6 says his trial should be delayed because the upcoming presidential election has created too “charged” of an atmosphere for him to get a fair trial.

Jared Wise is facing felony civil disorder and assault charges, as well as a handful of disorderly conduct and trespassing misdemeanors for joining the mob of Donald Trump supporters that violently descended on the Capitol that day. As Law&Crime has previously reported, Wise, who worked for the FBI from 2004 to 2016 and served as a supervisory special agent, allegedly yelled “kill ’em” at Jan. 6 rioters clashing with police, who he called “the Gestapo.” He has complained that he is being targeted for his political beliefs.

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Criminal Justice

Murder trial delayed for slain law prof’s mother-in-law after her lead lawyer resigns

By Debra Cassens Weiss

September 18, 2024, 1:21 pm CDT

A Florida woman accused in the July 2014 murder of her son-in-law, a professor at the Florida State University College of Law, won’t be going to trial in Tallahassee, Florida, this week because of the resignation of her lead attorney.

Lawyer Dan Rashbaum resigned Tuesday, the same day that jury selection was to begin in the murder trial of 74-year-old Donna Adelson, report the Tallahassee Democrat (here and here), WTXL and Florida Politics.

The resignation could open up possible new defense for Adelson, according to a lawyer on the defense team who is now her lead lawyer.

Rashbaum represented Donna Adelson and her son, dentist Charlie Adelson, who was convicted in November 2023 for hiring hit men to kill professor Dan Markel. Donna Adelson is accused of being part of the murder plot, allegedly carried out during a custody battle between Markel and Adelson’s daughter, Wendi Adelson. The alleged motive was to allow Wendi Adelson to move with the children from Tallahassee, Florida, to be near her family in Miami.

Charlie Adelson had contended at his trial that he was a victim of an extortion plot carried out by the two men who killed Markel.

Rashbaum cited a potential conflict of interest that arose after Charlie Adelson was subpoenaed to testify in his mother’s trial. On Monday, Charlie Adelson’s appellate team filed a notice advising that he didn’t consent to Rashbaum cross-examining him and no longer consented to Rashbaum representing his mother, according to Robert “Alex” Morris, Donna Adelson’s new lead lawyer.

Donna Adelson told Judge Stephen Everett in Leon County, Florida, that she consented to the joint representation. She was arrested at the Miami International Airport a week after Charlie Adelson’s conviction. She and her husband were buying one-way tickets to Vietnam.

Morris spoke with reporters outside the courthouse in an interview posted by WTXL.

Morris said everyone was aware of a potential conflict, but waivers were in place until Charlie Adelson revoked consent, as he had a right to do. That ended the “game plan, if you will, and necessitated a different one,” he said.

“Ultimately, the, the question is, is whether or not their positions are at odds with one another, and there’s absolutely the potential of that,” Morris said.

Rashbaum’s resignation “opens up pathways to, in exploring different defenses that may not have been previously available,” Morris said.

He also mentioned the possibility of a plea deal. “You never know,” he said.

See also:

Did dentist hire hit men to kill law prof Dan Markel, his ex-brother-in-law? ‘Absolutely no,’ he testifies

Defense blames law prof’s murder on extortion plot; lawyer ex-wife denies family involvement