The BLT: The Blog of Legal Times

DEA Agent In Videotaped Shooting Criticizes Agency Over Rules

The federal drug agent who accidentally shot himself during a gun and drug safety demonstration in Florida says the Drug Enforcement Administration violated internal rules in failing to protect a video of the incident that drew national publicity.

The agent, Lee Paige, has asked the U.S. Court of Appeals for the D.C. Circuit to revive a suit in Washington federal district court that alleges the DEA's handling of the video of the shooting violated privacy rights. The appeals court said this week it will hear the case in October.

Lawyers for Paige, a former undercover agent, say the questions for the D.C. Circuit include whether the DEA intentionally disclosed the video to the public and whether the agency must reveal the person who disclosed the recording. The case also explores the DEA’s internal rules on the control of evidence.

A federal trial judge shut down the suit last December, saying Paige cannot demonstrate willfulness because the identity of the leaker is unknown.

“The exact number and chain-of-custody of the copies is unknown due to the free-for-all and massive violation of DEA rules concerning the video, including the large number of copies made, the absence of virtually any record-keeping, and contradictory and false testimony and purported failures of recollection by various DEA agents,” an attorney for Paige, Ward Meythaler of Tampa’s Merkle Magri & Meythaler, said in court papers (PDF) filed this month in the appeals court.

Meythaler said the video “was a private fact, particularly since the video revealed his identity and subjected him to the very real threat of being killed because of his undercover activities.” And disclosure of the video, Meythaler said, made Paige “a laughing stock around the world despite his notable and often extremely dangerous service to the United States.”

Appeals Court Keeps Material Witness Hearings Secret

The U.S. Justice Department today successfully convinced a federal appeals court to keep secret the record of two material witness hearings from a defendant who argued he was entitled to review the information.

The defendant, Jaron Brice, who was convicted of prostituting underage girls, sought access to sealed testimony by two victims about their association with Brice. At Brice’s sentencing, the trial judge referenced the testimony. Brice is serving a 25-year prison sentence.

Brice’s attorneys at the federal public defender’s office in Washington said the First Amendment guarantees access to material witness proceedings. A three-judge panel of the U.S. Court of Appeals for the D.C. Circuit today upheld a trial judge’s ruling denying access to the information.

The D.C. Circuit judges said no federal appeals court has ever addressed whether the First Amendment right of access to judicial proceedings extends to material witness hearings. The court said its ruling does not decide that issue.

The appeals court said the trial judge properly cited a “compelling interest” in denying Brice a chance to see the records of the material witness hearings. The trial judge, Rosemary Collyer, said the interest rested in “not exposing intimate medical and other facts about these then-juveniles to all and sundry.”

Redaction of the records, Collyer said, did not provide an adequate alternative to sealing the record. Brice, the judge said, knew the initials of the girls who testified at the hearings and would able to connect sensitive information to the victims.

“Brice also separately contends that the records could have been unsealed only for his counsel and not for the public at large,” Judge Brett Kavanaugh said in the opinion for the court. “But the First Amendment right of access he asserts is a right of access for the public. Under the asserted First Amendment right of access, there is no precedent for disclosing material only to a defense counsel.”

D.C. Attorney General's Office Wins Sanctions Fight, Still Loses in Eyes of Judge

U.S. District Court Chief Judge for the District of Columbia Royce Lamberth denied sanctions this week against the D.C. Attorney General's office for producing last-minute discovery in a false arrest case. Calling the situation a "symptom of a clear disease of habit," however, Lamberth warned that "the District itself isn’t 'off the hook' by any stretch of the imagination."

The attorney general's office was facing a sanctions request from Lindsay Huthnance, who successfully sued the city and a group of local police officers over her 2005 arrest, claiming they came up with a trumped-up disorderly conduct charge in retaliation for publicly criticizing them.

The day before the trial was scheduled to begin on a Monday, March 7, Huthnance’s attorneys filed an emergency motion to strike amendments to discovery responses the city’s attorneys had submitted on Saturday, as well as the city’s notice that it intended to amend its exhibit list. The motion included a request for sanctions for what Huthnance and her attorneys called the city’s “Hail Mary” pass.

The attorney general’s office argued that the current attorneys working on the case shouldn’t be blamed for what it characterized as good-faith errors made by previous counsel during case preparation. The office noted in its response that the previous counsel had to leave “due to a medical emergency.”

In an opinion (PDF) released on Wednesday, Lamberth said he agreed that the city attorneys working on the case at the time of trial couldn’t be held responsible, but said he thought the office had a history of switching up counsel and then claiming it couldn’t be blamed for any mistakes after the fact.

“This Court has gone on the record here and elsewhere about its strong disapproval of the District’s discovery habits. It won’t continue to beat the proverbial dead horse,” Lamberth wrote. “Instead, it merely notes that the District’s behavior in this case was the symptom of a clear disease of habit that the District must cure.”

The opinion marks the second time in recent weeks that Lamberth has expressed his frustration with how the city handles litigation. In a May 9 opinion in an unrelated case, Lamberth accused the city and the attorney general’s office of "repeated, flagrant, and unrepentant failures to comply with Court orders" in their handling of discovery in a six-year class action suit.

In that opinion, Lamberth wrote that “a discovery violation of this exotic magnitude is literally unheard of in this Court.”

The attorney general’s office has declined to comment on the recent actions in the Huthnance case. The city still has a pending request for judgment or for a new trial.

The Morning Wrap

'Standard Ruse': The FBI is giving new details about its arrest of accused Boston mob boss James 'Whitey' Bulger. Agents lured him from his apartment using "a standard ruse... nothing spectacular," The Boston Globe reports.

New Gitmo Lawyer: The Miami Herald reports on Army Brig. Gen. Mark Martins, who was named Thursday as the chief war crimes prosecutor at Guantánamo Bay, Cuba. He was first in his class at West Point and a Rhodes Scholar before going to Harvard Law.

Libya Vote: The U.S. House is set to vote today on a measure to limit the funds for American operations in Libya, what The New York Times calls "an extraordinary and potentially bipartisan rebuke of a sitting president engaged in an active conflict abroad."

Next Microsoft Case?: The Wall Street Journal reports that the Federal Trade Commission may soon issue subpoenas to Google in an antitrust probe that will examine fundamental issues relating to Google's core search-advertising business.

Sheen's Ride: The Washington Post reports on how Charlie Sheen scored a last-minute escort from D.C. police to his April show in Washington.

Judicial Nominations Pops Up as Issue in Presidential Race

The presidential campaign of Republican Tim Pawlenty is out with an advertisement this week that touts his record appointing conservative judges to the Minnesota Supreme Court.

The mention in the 30-second ad is brief, but it makes Pawlenty an early advocate on the issue of judicial nominations during the 2012 election cycle.

Carrie Severino, who praised the ad on the National Review Online’s Bench Memos blog, wrote that it “bodes well for what he might do for the federal courts if he were elected president…. Let’s hope the other Republican hopefuls won’t be far behind.” Severino is chief counsel of the conservative Judicial Crisis Network.

Pawlenty mentions four issues in the ad: government spending, unions, judicial nominations and health care. He says he “appointed a conservative supreme court” and ends the ad with, “If I can do it in Minnesota, we can do it in Washington.”

Pawlenty left office in January after eight years as Minnesota’s governor. His final appointment to the court, David Stras, is a former clerk to Justice Clarence Thomas who taught at the University of Minnesota Law School.

D.C. Appeals Court 'Bound' by 19th Century Precedent in Property Dispute

In 1892, the Supreme Court of the District of Columbia – predecessor to the U.S. Court of Appeals for the D.C. Circuit – ruled that a contract was inherently void if one of the parties was mentally incapacitated.

In that case, Sullivan v. Flynn, the court upheld an even earlier U.S. Supreme Court ruling from 1872 in Dexter v. Hall, which found that "a power of attorney executed by an insane person, or one of unsound mind, is absolutely void." Washington was among a number of jurisdictions with that precedent on the books.

Over the years, the majority of state courts changed the rule to offer more protection of personal and property rights for the people involved, finding that such contracts were instead voidable by the mentally incapacitated person or their guardians.

Sullivan is still the ruling precedent in Washington, however. In an opinion (PDF) released today, the D.C. Court of Appeals wrote that it was “bound by Sullivan” to rule against tenants who had signed a lease with a woman who was deemed “mentally incapacitated” before she died.

The former property owner, Patricia Speleos, leased a house to the appellees in the case, Bryant and Sheilla Banks. The property was sold at a tax auction in 1997 to the appellants, 718 Associates, but Speleos executed the lease agreement with the Bryants before the deed was turned over in 2001.

The appellant filed an action in Landlord-Tenant Court in 2008 seeking a judgment for possession of the house, claiming that Speleos’ lease with the Banks family was void because, among other reasons, she was mentally incapacitated and, under Sullivan, such a contract was automatically void.

The trial judge ruled in favor of the Banks family, finding that the “modern view” in such cases was that these contracts are voidable, not inherently void. The appeals court, however, found that regardless of what might be considered good policy now, the D.C. courts are bound to precedent. They reversed the trial court ruling and sent it back for further proceedings, noting that several underlying arguments went unaddressed once the trial court found the contract was voidable.

“We agree with the trial court’s conclusion that American contract law has largely evolved since the days of Sullivan, and that the modern rule followed by a majority of states is 'that such a transaction would be simply voidable,'” the judges wrote.

But, they added later on, “Unless we convene en banc and decide to adopt the majority rule, we remain bound by Sullivan and the contracts of mentally incompetent persons are inherently void in the District of Columbia.”

The Banks’ case was handled by D.C. Law Students in Court. The supervising attorney, Dorene Haney, was not available for comment today, but Jonathan Gitlen, the then-student attorney who has since graduated from George Washington University Law School, said he hoped the issue would come up again before an en banc court or other precedent-setting forum.

“When you’re dealing with people who are incompetent in some sort of way, you can’t always tell if they are incompetent or not. In some cases, these people could make valid deals,” he said.

718 Associates’ attorney, solo practitioner Morris Battino, could not immediately be reached for comment.

Morgan, Lewis & Bockius Adds Energy Partner

Morgan, Lewis & Bockius announced today that the firm is adding Glen Bernstein as a partner in its energy practice.

Bernstein was previously a partner in the energy regulation practice at Sidley Austin, and before that he was at Skadden, Arps, Slate, Meagher & Flom, also in the energy regulatory group. He was an associate at Morgan, Lewis & Bockius before joining Skadden in 2000.

“They have a great depth of practice here that was very appealing to me,” Bernstein said. “It was just a perfect fit in terms of adding additional resources [for clients] and where I’d be able to help expand their practice.”

Bernstein will focus much of his practice on transmission issues for the electric industry.

"Glen is a strong addition to our FERC team," Kathryn Sutton, leader of the energy practice, said in a release from the firm. "His experience advising companies both in the courtroom and in the boardroom offers our utility clients another seasoned resource as they face increasingly complex federal and state energy regulations."

To Restrict Pepco Documents, Court Requires Proof of 'National Security' Threat

In the ongoing investigation into a June 2008 outage that left thousands without power, the D.C. Court of Appeals gave the city's Office of People’s Counsel – the agency tasked with representing utilities consumers – a win today.

OPC wants Pepco to turn over maps and diagrams of electrical substations and other elements of Pepco's electrical infrastructure as part of its investigation into the outage. Pepco objected, arguing that the information could pose a national security threat if it fell into the wrong hands, despite the fact that OPC agreed to keep it confidential.

The D.C. Public Service Commission sided with Pepco, issuing an order that OPC could view the documents at Pepco’s office but couldn’t make any copies. OPC appealed, and the court heard oral arguments on April 26.

In an opinion (PDF) released this morning, the appeals court found that the commission had failed to fully investigate Pepco’s claims of a possible national security threat before reaching its decision, especially since OPC had already offered to keep them confidential. The case came before Associate Judges Vanessa Ruiz and Phyllis Thompson and Senior Judge Frank Nebeker.

“The Commission made no finding — and it had no ostensible basis for a finding — that a restriction on OPC’s obtaining copies of the maps and diagrams was 'necessary' to protect the documents,” they wrote.

The judges vacated the commission’s previous findings and ordered that they reconsider OPC’s request and Pepco’s objection.

Acting People's Counsel Sandra Mattavous-Frye said she is “elated” with the court’s ruling, which also reaffirmed OPC’s statutory authority to investigate public utilities. She said that as the agency proceeds with future investigations into Pepco’s service reliability – a hot topic in light of major outages in recent years - the ruling will set up guidelines for OPC’s access to information.

“The commission will, as we asked, make a formal determination on the record about … what the parameters should be,” she said. “The commission never made that kind of finding, they just relied on Pepco’s assertion that it was a security matter.”

Randolph Elliott of Washington’s Miller, Balis & O’Neil argued OPC’s case. He referred questions to the agency.

Public Service Commission attorney Richard Herskovitz argued before the court, but referred questions to the commission’s general counsel, Richard Beverly.

“We sought guidance from the court on reviewing OPC’s request for unrestricted access to infrastructure information in an environment of heightened concern over potential attacks against the infrastructure itself,” Beverly said. “The court has remanded this matter to the commission with guidance and we will apply it.”

A Pepco spokesman said the company is still reviewing the ruling.

Appeals Court Rules for DOJ in Corruption Case

A federal appeals court ruled today for the U.S. Justice Department in a case that cuts to the heart of federal prosecutors' efforts to investigate potential corruption in Congress.

The decision came in the government's case against former Rep. Rick Renzi (R-Ariz.), who faces corruption charges in connection with an alleged quid pro quo. Prosecutors say Renzi held out the promise of federal mining rights to pressure a private company into buying an unrelated piece of land in a deal that would mean cash for Renzi.

Renzi, represented by lawyers from Steptoe & Johnson in Washington, wants the indictment against him thrown out. He says his actions fell within the constitutional protection afforded to legislative speech and activity, and that prosecutors improperly used his legislative activity as evidence before a grand jury.

But a three-judge panel of the U.S. Court of Appeals for the 9th Circuit disagreed. Its unanimous 45-page ruling today swept aside all the claims made by Renzi and his lawyers, affirming the pre-trial rulings made a federal district judge.

“Despite Renzi’s best efforts to convince us otherwise, we agree with the district court that the alleged choices and actions for which he is being prosecuted lie beyond those limits” of protected activity, the opinion concludes. Judge Richard Tallman wrote the opinion, joined by fellow 9th Circuit Judge Consuelo Callahan and U.S. District Judge Suzanne Conlon, sitting by designation. Click here (PDF) for a copy.

Lawyers who follow congressional ethics investigations have been watching the Renzi appeal closely for its potential impact on other cases. Congressmen have often invoked the Constitution’s “speech or debate” protection as they’ve battled Justice Department inquiries, and in 2007, the D.C. Circuit strengthened that protection when it ruled (PDF) on a search of the office of then-Rep. William Jeffersion (D-La.). In that case, the judges said executive-branch agents could not even review privileged materials without permission from Congress.

The opinion from the 9th Circuit is more favorable to the Justice Department. About one fourth of the opinion is devoted to disagreeing with the D.C. Circuit’s ruling in the Jefferson case, known as USA v. Rayburn House Office Building.

“Simply stated, we cannot agree with our esteemed colleagues on the D.C. Circuit. We disagree with both Rayburn’s premise and its effect and thus decline to adopt its rationale,” Tallman’s opinion says. A review of privileged materials, the opinion says, may be a distraction for lawmakers, but the executive branch still has the authority to investigate alleged bribery and other corruption.

Judge Orders DLA Piper To Give Documents To Clemens

Lawyers for Roger Clemens today won access to information the law firm DLA Piper wanted to keep secret from the defense team on the ground the attorney work product doctrine shielded the documents from disclosure.

Judge Reggie Walton of Washington federal district court said Clemens' defense lawyers are entitled to "pierce the cloak of protection" that might otherwise protect DLA Piper interview notes and memos prepared when the firm investigated the use of performance enhancing drugs in Major League Baseball.

Walton, however, said Clemens’ defense team, led by Russell Hardin and Michael Attanasio of Cooley, is not entitled to all of the information DLA prepared during its investigation—dubbed the “Mitchell Commission” after former chairman and Senate majority leader George Mitchell.

The judge said Clemens will receive every statement that two key witnesses—Brian McNamee and Kirk Radomski—made that directly pertains to Clemens. Other information in the DLA Piper material will be redacted, Walton ordered (PDF).

“The court believes that this approach properly balances the interests of DLA Piper in protecting its work product to the fullest extent possible, while also allowing the defendant to access the information that he needs to present his defense,” Walton said.

Clemens’ attorneys issued a subpoena to DLA Piper demanding interview notes and memos pertaining to Jose Canseco, Radomski and McNamee, Clemens’ former trainer. In March, DLA Piper asked Walton to quash the subpoena, saying it intruded on the protection accorded the work product of attorneys.

Earlier this month, Walton met in chambers with a group of DLA Piper lawyers to determine the level of protection to give to the firm’s documents. DLA Piper partners David Clarke, Charles Scheeler, John Clarke Jr. and associate Ellen Ginsberg spoke with the judge in the ex parte hearing. Scheeler, who practices in white-collar defense in the firm's Baltimore office, was the lead investigator under Mitchell.

“The challenge for the court here is determining what constitutes ‘fact’ versus ‘opinion’ work product,” Walton wrote. “It is well understood in the law that ‘the task of drawing a line between what is fact and what is opinion can at times be frustrating and perplexing.’”

Walton said “for the most part” DLA Piper’s notes from initial interviews with Radomski and McNamee constitute “fact” work product and do not deserve the heightened protection given to “opinion” documents. The interviews, the judge said, were general in nature, prosecutors participated in the meetings and DLA Piper made a “substantial” effort to confirm the accuracy of various statements.

“Taken together, these factors persuade the court that the recorded remarks of Mr. Radomski and Mr. McNamee contained in these notes and memoranda do not reflect the mental impressions, thought processes, legal strategy or personal assessments of DLA Piper,” Walton said. “In fact, they accurately depict the witnesses’ own words.”

The judge noted DLA Piper “was inhibited in preparing for the initial interviews” because the firm was not made aware of the identity of the witnesses until shortly before the meetings were conducted. “Given this limitation, the court cannot envision how DLA Piper could have developed a focused line of inquiry for either of these two witnesses,” the judge said.

Clemens was charged with perjury and other crimes tied to testimony he gave in February 2008 to the House Committee on Oversight and Government Reform. His trial is scheduled to begin in July.