Host Meg McCormick Hoerner, Esquire sits down with Professor Jessica Frisina — Assistant Professor of Law at Rutgers Law School (Camden), founder and director of the Criminal Defense and Advocacy Clinic, and a former Assistant Deputy Public Defender for the State of New Jersey — to break down the U.S. Supreme Court's February 25, 2026 decision in Villarreal v. Texas.

This is a deep, practitioner-level conversation about one of the most important recent Sixth Amendment and attorney-ethics opinions for criminal defense attorneys nationwide. Drawing on Professor Frisina's eight years of adult trial work in the Essex County (Newark) Public Defender's Office, her youth defense work in Detroit, and her course "The Ethics of Criminal Practice," this episode translates a complex SCOTUS holding into clear, actionable guidance.

WHAT THIS CASE IS ABOUT - https://www.njcriminalpodcast.com/villareal-v-texas/

David Villarreal's Texas murder trial culminated in his own testimony, where he claimed he stabbed the victim in self-defense. A 24-hour overnight recess interrupted his direct examination, and the trial judge issued a "conferral order" — telling defense counsel they could speak with their client about anything EXCEPT "managing" his ongoing testimony. Villarreal was convicted and argued on appeal that his Sixth Amendment right to confer with counsel had been violated.

In a unanimous opinion authored by Justice Ketanji Brown Jackson, the Court held that a qualified conferral order prohibiting only discussion of "testimony for its own sake" during a mid-testimony overnight recess does not violate the Constitution. The line, the Court ruled, is about CONTENT — not the clock.

WHAT YOU'LL LEARN IN THIS EPISODE

• How Villarreal fits between the two governing precedents — Geders v. United States (1976) and Perry v. Leeke (1989)

• Why this is fundamentally an attorney-ethics opinion, not just a Sixth Amendment one

• The difference between permissible consultation (plea negotiations, scheduling, new witnesses) and prohibited "testimony management" or coaching

• Why the Rules of Professional Conduct already prohibit coaching — and whether this order adds an unnecessary layer

• The "sword you must sheath": preparing truthful testimony before the stand vs. mid-testimony

• A breakdown of the concurrences — Justice Alito on "unadulterated" testimony, and Justice Thomas (joined by Gorsuch) concurring only in the judgment

• Professor Frisina's argument for why Perry v. Leeke may no longer be good law

KEY TAKEAWAYS FOR PRACTICING DEFENSE ATTORNEYS

The ethical line hasn't moved much — but it's now in the public consciousness, and judges and prosecutors will be watching.

Be intentional with your words. Before answering a client's question during a recess, ask: Does this touch on testimony? If so, is it to alter testimony — or for a legitimate, separate purpose?

Memorialize your conversations (without waiving privilege).

Make a record. If a conferral order has a chilling effect on your duties of competence, diligence, or candor, return to the court after the recess and put it on the record. The absence of that record was pivotal in Villarreal.

CHAPTERS
00:00 Introduction & guest background — Professor Jessica Frisina

02:00 Why Villarreal is really an attorney-ethics opinion

02:28 The facts: Villarreal's murder trial and the overnight recess

04:41 Setting the stage: Geders, Perry, and the "conferral order"

06:43 Distinguishing total bans from the partial ban in this case

08:24 "Managing testimony" and Justice Jackson's content-based line

10:33 Is coaching already an ethics violation? The amicus briefs

13:00 The attorney's "toolbox" — preparing vs. coaching a witness

15:59 The holding: a balancing test that survives the Sixth Amendment

16:31 What exactly is a "conferral order"?

17:20 Justice Alito's concurrence on "unadulterated" testimony

19:14 Practical guidance: where the permissible line falls

19:42 Does this change anything for practicing attorneys?

23:34 Justice Thomas's concurrence (joined by Gorsuch)

24:49 Final takeaways: best case, worst case, neutral effect

27:00 Are Geders and Perry still good law?

30:14 Will prosecutors start requesting conferral orders?

ABOUT
Jessica Frisina is an Assistant Professor of Law at Rutgers Law School in Camden, New Jersey, where she founded and directs the Criminal Defense and Advocacy Clinic and teaches "The Ethics of Criminal Practice." She previously served as an Assistant Deputy Public Defender in the Essex County (Newark) Public Defender's Office for approximately eight years, and spent two years in Detroit focused on youth defense and education advocacy.

CASES DISCUSSED

• Villarreal v. Texas, 607 U.S. _ (2026) — https://www.supremecourt.gov/opinions/25pdf/24-557_l5gm.pdf
• Geders v. United States, 425 U.S. 80 (1976)
• Perry v. Leeke, 488 U.S. 272 (1989)
• Powell v. Alabama, 287 U.S. 45 (1932)
• U.S. Const. amend. VI (Right to Assistance of Counsel)