The BLT: The Blog of Legal Times

Sen. Specter Files Supreme Court Brief in Torture Case

Sen. Arlen Specter (D-Pa.) today is filing a brief on behalf of himself and two other members of Congress in a closely-watched human rights case testing whether foreign torture victims can seek damages in U.S. courts. The case, which will be argued March 3, is Samantar v. Yousuf, a dispute over the meaning of the Torture Victim Protection Act of 1991, which Specter sponsored.

In passing the law, Specter asserted in the brief, Congress intended "to provide redress for egregious acts that infringe human rights and are an affront to human dignity." Joining Specter on the brief were Sen. Russ Feingold (D-Wis.) and Rep. Sheila Jackson Lee (D-Texas.)

Bashe Abdi Yousuf, a Somali businessman who was tortured and imprisoned under the Siad Barre regime in Somalia in the 1980s, invoked the law in suing Mohamed Samantar, former defense minister and prime minister of Somalia. Samantar fled Somalia in the early 1990s and now lives in Virginia. Four other Somali torture victims are also part of the suit, first filed in 2004 by the Center for Justice and Accountability. At the district court level, Samantar argued successfully that he was protected from suit under the Foreign Sovereign Immunities Act, and the suit was dismissed. But the U.S. Court of Appeals for the 4th Circuit reversed, finding that immunity under the law does not extend to individuals.

In his brief Specter -- who has argued before the Supreme Court -- asserted emphatically that Congress intended to cover cases like Yousuf's, and that to interpret the law otherwise would "effectively nullify" the law. A .pdf copy of the brief can be found here.

The fact that the Court agreed to hear the case has fueled worry by legislators and human rights groups that the law is in jeopardy. In a floor statement on thec ase last December, Sen. Patrick Leahy (D-Vt.) said, "I am concerned that the TVPA's crucial role in protecting human rights may be weakened or even rendered meaningless."

Eileen O'Connor, a former CNN foreign correspondent and now chair of the Center for Justice and Accountability, said the Specter brief and others that are expected to be filed today will be important in clarifying that Congress intended to make sure that "people who commit human rights abuses cannot just come to the United States and find safe haven." O'Connor is counsel at McDermott Will & Emery in Washington.

UPDATE: Solicitor General Elena Kagan also filed a brief in the case today, supporting affirmance of the 4th Circuit ruling. The brief argues that the Foreign Sovereign Immunities Act as written does not protect foreign officials from lawsuit, and should not alter the tradition that the executive branch makes the "sensitive diplomatic and foreign-policy judgments" about whether foreign officials should be given immunity. "In the view of the United States," wrote Kagan, "principles articulated by the Executive Branch, not the FSIA, properly govern the immunity of foreign officials from civil suit for acts in their official capacity."

FCC Chairman Genachowski Shares Family's Auschwitz Tragedy

Federal Communications Commission Chairman Julius Genachowski today represented the United States at an event far removed from his usual scope of duties - the commemoration of the 65th anniversary of the liberation of Auschwitz in Oswiecim, Poland.

Genachoswki delivered a speech at the site of the Nazi prison camp, where he shared his family’s story.

He told the tale of his great-grandmother, Bella Rabinovitch, and her family.

“Bella was a mother of four -- three grown girls and a boy -- living in Belgium in the first half of the last century,” said Genachowski. “As the German invasion of Europe spread into Belgium, Bella’s world began to crumble. One daughter and son-in-law fled the country, fearing the worst.

Then Bella’s husband and son were arrested and sent to a slave labor camp. Another son-in-law, Shimon, was picked up by the SS on a streetcar (his identity card checked; it was marked “J”). He brazenly escaped, and that night left the country with his wife, Bella’s daughter Dina, and their five-year-old son Azriel.”

Genachowski continued, “Bella went into hiding with her remaining daughter, son-in-law, and grandson. Like so many others, they were eventually discovered… On April 19, 1942, Bella and what was left of her family in Belgium were packed onto a train along with 1,396 others. After three days in the cattle car, they arrived at Auschwitz-Birkenau…. The records state that Bella Rabinovitch, along with Sara, Isaac and four-year-old Jacob were ‘Gazes a L’Arivee’ --gassed on arrival.”

“My father, Azriel Genachowski, was the five-year-old boy I told you about,” said Genachowski. “Azriel Genachowski and my mother Adele are here today, with the American delegation. They survived the Nazi onslaught of Europe. They taught me what I have told you.”

“My daughter, Lilah, is five years old -- the same age as my father when he and his parents made their escape from Nazi-occupied Belgium.

My son, Aaron, is three years old -- the same age as his mom’s father in Nazi-occupied Holland when his parents handed him over to be hidden by righteous non-Jewish heroes who risked their lives to save people they didn’t know.

We preserve Auschwitz-Birkenau so that children all over the world like Lilah, Aaron, and their older brother Jake can visit and absorb the full dimensions of the unthinkable tragedy that occurred here.”

Cleared of Murder, Two Men Sue in D.C. for Unjust Imprisonment

Two men who spent a combined nearly 50 years in prison for a stabbing death in Northwest Washington that a judge later found the men didn't commit are suing the federal government for damages for unjust imprisonment.

The former inmates, Joseph Eastridge and Joseph Sousa, whose suit is expected to be filed this week in the U.S. Court of Federal Claims, say they are entitled to monetary damages since a federal judge issued a “certificate of innocence” that absolved the men of their alleged roles in the 1976 murder of Johnnie Battle.

In 2005, Judge Rosemary Collyer of the U.S. District Court for the District of Columbia granted a habeas petition filed by Eastridge and Sousa and declared the men innocent of first-degree murder. Collyer granted a certificate of innocence in March 2009. The certificate is a necessary prerequisite to pursue a damages claim against the government for wrongful conviction.

Patrick Regan and John Zwerling, lawyers for Eastridge and Sousa, said in the suit that prosecutors failed to disclose exculpatory information at the time of the murder trial in D.C. Superior Court. The information included grand jury testimony that undercut the government’s theory that Eastridge and Sousa directly participated in killing Battle. (The murder had racial underpinnings. The accused defendants, who are white and former members of the Pagan motorcycle club, were charged with killing Battle, a black man, during a fight.)

For decades, according to the suit, the government “routinely and repeatedly refused to disclose this exculpatory material despite plaintiffs’ numerous requests.”

Regan of Washington’s Regan, Zambri & Long and Zwerling of Zwerling, Leibig & Moseley in Alexandria, Va., said Eastridge is entitled to a minimum of $1.5 million, according to federal law, for the time he spent incarcerated. Sousa, the lawyers said, is owed a minimum of $1 million.

“These men were the victim of an overzealous prosecution in a racially charged atmosphere. Even when the government knew that it had imprisoned innocent men, they refused to disclose the evidence and dragged out the legal proceedings for 15 years,” Regan said. “These two innocent gentlemen spent over 50 years total in the most horrific prisons in the country and the time has come for the government to do the right thing. They lost virtually their entire adult lives while they were imprisoned.”

A third man who was convicted in the murder, Michael Damien, died in prison in 2002 and is not named as a plaintiff. Collyer did not grant Damien a certificate of innocence. Regan and Zwerling, who represent Damien's estate, are fighting for a second chance at a certificate in a case that is pending in the U.S. Court of Appeals for the D.C. Circuit.

Government lawyers are opposed to a certificate, saying that, among other things, Damien’s conviction has never been reversed or set aside. The appeals court had planned to hear Damien’s case Jan. 22 but postponed argument to allow the parties to pursue a settlement.

Judge Testifies She Hoped Former Girlfriend Would Get Help

By Jordan Weissmann

D.C. Superior Court Magistrate Judge Janet Albert explained this morning why she waited two weeks to file a formal police complaint against her former girlfriend, who had allegedly broken into her home and harassed her.

Albert told jurors at D.C. Superior Court that she had thought taking formal steps would only further enrage the woman, Taylar Nuevelle, who is currently on trial accused of stalking and harassing the judge. Albert said she thought Nuevelle would receive proper help after she was discovered passed out in the judge's attic in the early morning of Sept. 14, 2008, following an angry breakup.

Instead, Albert said, Nuevelle continued to harass her. Albert went to the police on Sept. 27.

"When it became clear to me that she was going to do anything in her power to destroy me personally and professionally, I decided" to contact law enforcement, Albert testified.

Albert’s direct testimony, which began yesterday, continues this afternoon. Nuevelle is represented by D.C. solo practitioner Dorsey Jones Jr.

Trial Lawyers Group Lobbied a Little Less in 2009

The American Association for Justice spent roughly $4.7 million lobbying in 2009, down roughly 13 percent from $5.4 million in 2008, lobbying disclosure reports show.

The reports show the trial lawyers' lobbying team, led by Executive Vice President Linda Lipsen, was active on a host of issues, ranging from aircraft safety standards to mandatory arbitration and consumer protection.

The group's highest lobbying tab was in the fourth quarter, when it reported spending $1.33 million on lobbying. Communications director Ray De Lorenzi said fourth-quarter lobbying was driven by the proposed health care overhaul in Congress. In an e-mail, he described last year's dip in lobbying as "insignificant," and said the lobbying depends on congressional activity "on key civil justice issues."

House Committee Adopts Articles of Impeachment Against Judge Porteous

The House Judiciary Committee voted unanimously today to adopt four articles of impeachment against U.S. District Judge G. Thomas Porteous Jr., accusing the judge of misconduct over three decades.

Porteous, who has refused to resign, would be the eighth federal judge ever removed from the bench if the full House of Representatives impeaches him and the Senate convicts him. He has been a judge in the Eastern District of Louisiana since 1994 but is not currently hearing cases because of the ethics questions surrounding him.

This is the second time in as many years that the House has taken action against a federal judge. In June, the House impeached U.S. District Judge Samuel Kent of the Southern District of Texas, who had pleaded guilty to obstructing an investigation into allegations of sexual harassment. It was the first impeachment of a federal judge since 1989. Kent resigned before the Senate began his trial.

The four articles of impeachment cover a wide variety of allegations against Porteous: First, that he should have recused from a 1997 case because he had, while a state judge, accepted cash from a law firm involved in the case; Second, that he corruptly accepted meals, trips and other gifts from a bailbondsman while Porteous was a state judge; Third, that he lied during his personal bankruptcy case from 2001 to 2004 by, among other things, concealing assets; and Fourth, that he misled the Senate by not revealing his allegedly corrupt activity during the 1994 confirmation process.

“Judge Porteous demonstrates a pattern of conduct that is incompatible with the trust and confidence placed in him as a federal judge,” said Rep. Adam Schiff (D-Calif.), who chaired the House task force that investigated Porteous.

Porteous’ lawyer, Richard Westling of the Washington office of Ober, Kaler, Grimes & Shriver, has said that the House should not consider Porteous’ conduct as a state judge. And, Westling has said, the U.S. Department of Justice declined to bring a case against Porteous, citing multiple complications with a potential trial.

Updated at 12:39 p.m.

DOJ, FTC Hone in on Merger Guideline Revisions

The Department of Justice and the Federal Trade Commission held their final workshop yesterday to consider changes to the horizontal merger guidelines.

The two agencies announced in September that they would revisit the guidelines, which were last updated in 1992 and are used to evaluate potential competitive effects of mergers.

Since then, the DOJ and FTC have held five joint workshops - in New York, Chicago, California, plus two in Washington - with nearly 100 panelists, and received 44 written submissions.

“A consistent theme running through the panels is that there are indeed gaps between the guidelines and actual agency practice--gaps in the sense of both omissions of important factors that help predict the competitive effects of mergers and statements that are either misleading or inaccurate,” said Assistant Attorney General Christine Varney in remarks delivered at yesterday’s workshop held at the FTC.

For example, the guidelines call for the agencies to apply a five-step analytical process, first assessing markets and market shares, then potentially adverse competitive effects, entry, efficiencies, and then failing-firm considerations.

“None of our panelists advocated following that sequence as the best and most efficient way either to assess every merger's likely competitive effects or to reach an enforcement decision,” Varney said. “Panelists have noted, however, that far more flexibility than is indicated in the guidelines is both the norm of actual agency practice and, moreover, appropriate given the diversity of considerations.”

Panelsist also agreed that the guidelines overstate the importance the Herfindahl-Hirschman Index, or HHI, a measure of market concentration.

“It will not surprise you that HHIs have been the focus of neither a party presentation nor a staff recommendation since I've been the assistant attorney general,” Varney said. “It is thus relatively clear that the HHI thresholds set forth in the guidelines no longer capture agency practice or economic learning about the kinds of mergers that are most likely to lead to consumer harm.”

Varney also pointed to unilateral effects as another area where agency thinking has evolved considerably since 1992. The theory of unilateral effects recognizes that mergers may create or enhance market power by allowing the merged firm to profitably raise prices, without accommodation of other rival market incumbents.

The Morning Wrap

Democrats at an Impasse: Politico reports that Senate Democrats are fractured on how to pass health care reform. And Senate Majority Leader Harry Reid says there's no rush.

Toy-uh-oh-ta: Toyota is stopping production and sale on eight of its most popular models after discovering dangerous design flaws involving their accelerators. The decision follows two recalls involving millions of vehicles, notes The Washington Post.

Panda Lawyer: On the BLT, Jeff Jeffrey talked to Arent Fox partner Anthony Lupo, whose firm was involved with talks between China and The National Zoo over the return of Tai Shan the giant panda. Money quote: “The zoo probably could have negotiated for Tai Shan to stay [even longer]. China has been very gracious in negotiating the stay of Washington’s pandas,” Lupo said. “But pandas aren’t cheap.”

Tablet Mania: In case you somehow hadn't heard, rumor has it Apple is about to debut a tablet computer today. Nobody knows what it's going to be called, media industry types are expecting it to create huge waves. See USA Today for more.

In Testimony, D.C. Magistrate Judge Recounts Tortured Breakup

For most of her testimony, D.C. Magistrate Judge Janet Albert had stayed composed. Appearing in D.C. Superior Court on Tuesday in the criminal trial of her former girlfriend, Albert steadily recounted the suicide threats, the barrage of furious phone messages and e-mails, and the first break-in, often using dry, lawyerly words like “de-escalate” to capture her point. But asked by the prosecutor to describe the details of the day she found Taylar Nuevelle passed out inside her attic, Albert finally paused and pressed her hands to eyes, as if trying to hold back tears. Then, after a few beats passed, she went on.

It was the second day of trial for Nuevelle, who prosecutors accuse of breaking into Albert’s Washington home in an attempt to stalk and harass her in 2008.

Among the witnesses, a D.C. police detective testified that he discovered Nuevelle on Sept. 13, 2008, passed out in Albert’s attic, with pills, a bottle of wine, a computer, and a bucket turned makeshift toilet nearby. But most of the afternoon’s action was dominated by Albert’s testimony, and the portrait she gave of her emotional and often tortured relationship to the defendant.

Albert, who serves as a magistrate on the D.C. Superior Court, testified that she met Nuevelle in May 2007 at a church retreat. In August, they began what Albert described as a “very volatile relationship.” There were screaming fights that lasted until 1 a.m., during which Nuevelle would nearly faint. Albert said she tried to end the relationship a number of times, but always backed off out of “anxiety and fear.” And meanwhile, Nuevelle became attached.

“She wanted to be a stay-at-home mom,” Albert said. “She wanted another child. She wanted to get pregnant, and she had this idea that she would be able to do that.”

On Sept. 10, 2008, Albert said, she attempted to break off the relationship once more during a dinner out. Again, she couldn’t do it. The next day, she called Nuevelle about meeting for a final talk. According to Albert, Nuvelle then called back, screaming.

Over the next several hours that night, Nuevelle would call Albert 139 times, prosecutors said. There were frantic text messages and e-mails as well. Albert decided to take her nine-year-old son and spend the night at a friend’s house in Virginia. There were more texts from Nuevelle, saying she was going to Albert’s house to pick up some belongings (Albert said the two of them never lived together, and that Nuevelle still had her own apartment). Later, Nuevelle texted that she had arrived, that she was on the porch and that neighbors could hear her.

When Albert returned home early in the morning before work, she found Nuevelle in the house. According to Albert, Nuevelle said she had climbed in through an unlocked window. After a confrontation in which Nuevelle threatened to publish an unsent letter Albert had written to a former lover, she left the house.

Rather than call the police, Albert said she decided to contact their minister. In retrospect, it was a mistake, she said. But she was convinced at the time it was the best way to handle the situation.

“I firmly believed that if I took steps to resolve it using a minister, instead of police, it would do two things,” Albert explained. “One, that it would de-escalate the situation instead of escalating it, and two, it would be a sign of good faith that I wasn’t trying to harm her, that I just wanted to be left alone.”

The drama continued throughout the day. Nuevelle continued her calls and messages, at one point telling Albert that she was drinking alcohol while taking pills. Albert called two of Nuevelle’s friends, but Nuevelle allegedly denied to them that she was endangering herself. There were more suicide threats, including a message that she was drinking and taking anti-depressants she had stolen from Albert’s home. Albert forwarded that message to their minister, still hoping she might be able to help. Then the messages stopped.

That night, Albert said, she lay awake again, wondering whether Nuevelle had killed herself or gotten help.

“It was horrible,” Albert said. “It was the worst thing I ever went through.”

On the following day, Sept. 13, there were more messages from Nuevelle, Albert said. But they gave her little comfort. While taking her son to a birthday party, she discovered another suicidal message on her phone. In this one, Nuevelle said she was in a dark place, taking Buspar, Oxycodone and anti-nausea pills. Albert forwarded it to their minister again. A friend of Nuevelle’s called, looking for her.

At that point in the story, prosecutors halted their examination of Albert. Her testimony continues on Wednesday.

Boeing Lands Counsel From Transportation Department

Jennifer Brosnahan McIntyre, who until recently was a deputy general counsel for the U.S. Department of Transportation, has joined The Boeing Company as the aviation giant's chief counsel for Washington operations. At Boeing, McIntyre will oversee the company's lobbying, regulatory and administrative law efforts.

At the DOT, McIntyre handled matters related to litigation, regulation, legislation and policy issues. Before joining the department, she served in the White House counsel’s office as an associate counsel to the president. She is also a veteran of Kirkland & Ellis, where she worked from 1999 until going into the government in 2002. Boeing will be her first foray into in-house work in the private sector.

McIntyre (Harvard, Harvard Law) said she signed on to Boeing, where she started work on Jan. 8, because she was interested in both the commercial and defense side of the company.

“This is pretty much my dream job,” McIntyre said. “The company has a great reputation, and Boeing’s support of the military was very attractive to me.”