The BLT: The Blog of Legal Times

ABA Backs Federal Court Trials of Alleged 9/11 Plotters

The president of the American Bar Association sent a letter to Attorney General Eric Holder Jr. today praising the decision to pursue federal court prosecutions of five Guantanamo detainees with alleged ties to the 9/11 attacks.

The Nov. 25 letter, signed by ABA President Carolyn Lamm, comes after Holder became the target of criticism from conservative politicians for his decision to try alleged 9/11 mastermind Khalid Sheikh Mohammed and the others in New York.

The letter calls the military commissions before which the detainees were originally charged “constitutionally flawed” and lauds the U.S. court system as “well-equipped to handle trials of this magnitude.”

“[N]o matter how heinous the charges, the long awaited trials of these alleged terrorists must be both fair and perceived as fair, or the resulting verdicts will not be recognized as legitimate,” the letter reads. “The accused must receive the competent assistance of counsel, be afforded due process, and treated as innocent until proven guilty.”

Lamm was not immediately available for comment.

The ABA posted the letter in its entirety on its Web site.

Senate Confirms Paul Martin as NASA Inspector General

Paul Martin, formerly of the Justice Department, is re-launching his career. Sort of.

Martin was confirmed by the Senate on Friday as the inspector general for NASA. Since 2003, Martin had been Justice’s deputy inspector general, serving under Inspector General Glenn Fine. The OIG investigates, among other things, allegations of fraud, abuse and integrity laws that govern DOJ employees, operations, grantees and contractors. (Click here for the OIG web page.)

In September, President Barack Obama announced his intent to nominate Martin, who spent 13 years at the U.S. Sentencing Commission before joining the Justice Department.

“Glenn and my colleagues at the DOJ OIG are some of the brightest, hardest working, most dedicated public servants on the planet,” Martin said in a statement last month before the Senate Commerce, Science and Transportation Committee. Martin described Fine as “the epitome of the kind of leader any Inspector General should strive to emulate.”

Martin says he’s looking forward to his new role, noting he has to get up to speed on all the space lingo. Martin starts at NASA on Nov. 30.

Appeals Court Rules for D.C. in Protest Case

Updated Nov. 21

The police have no obligation to order a crowd to disperse before making arrests, a federal appeals court ruled today, marking a victory for the District of Columbia in a suit that alleges police unlawfully arrested a group of demonstrators in January 2005.

In a divided opinion, a three-judge panel of the U.S. Court of Appeals for the D.C. Circuit remanded the suit to the trial court for further proceedings. The trial judge had granted summary judgment in favor of the plaintiffs. Click here for the D.C. Circuit opinion.

The appeals court found that there remains material issues of fact in dispute. The plaintiffs and police tell different stories about how the plaintiffs ended up getting arrested in an alley the night of January 20, 2005, in the Adams Morgan neighborhood of Northwest Washington.

Some in the crowd took to property destruction. The plaintiffs, including Sarah Carr, said they were not involved in any acts of vandalism. The trial court judge found the arrests of the plaintiffs violated the Fourth Amendment because the police could not have had probable cause to arrest certain marchers.

At issue on appeal is the extent to which police need probable cause to arrest any individual in a crowd when there are people who are committing crimes. Senior Judge Laurence Silberman, writing for the majority, said that “police witnesses must only be able to form a reasonable belief that the entire crowd is acting as a unit and therefore all members of the crowd violated the law."

Silberman said the police do not first need to order the crowd to disperse to give non-offenders a chance to comply with the order.

“If police have probable cause to believe that the group they are arresting is committing or has committed a crime, no more is necessary,” Silberman wrote. “Requiring a dispersal order in addition to the ordinary probable cause threshold would be particularly anomalous in a case like this in which officers have reason to believe that an entire crowd is engaged in or encouraging a riot.”

Stacy Anderson, an assistant attorney general for the D.C. Attorney General’s Office, argued for the District. Daniel Schember argued for the plaintiffs.

McInerney Called 'Coup' for DOJ for Fraud Prosecution

Updated 12:40 p.m.

Lanny Breuer has found his rock star to run the Justice Department's Fraud Section: a veteran white collar criminal defense lawyer who is a former prosecution supervisor in the U.S. Attorney's Office in Manhattan.

Yesterday, Breuer announced that Davis Polk & Wardwell partner Denis McInerney has accepted the top slot in the Criminal Division’s Fraud Section. The retiring chief, Steve Tyrrell, is jumping to the private sector. “We’re very excited for Denis to build on the terrific work that Steve and his team has done,” Breuer said.

There may be excitement in the front office, but some career prosecutors in the Fraud Section are concerned that McInerney hasn’t prosecuted cases for 15 years. The search for a section chief in recent months generated angst in the section. Change in the Fraud Section is coming. Earlier this week, Breuer publicly praised the work of deputy chief Mark Mendelsohn, who is leaving for work in the private sector. Breuer called Mendelsohn an “exceptional public servant and a visionary steward” of the Foreign Corrupt Practice Act program.

McInerney’s prosecution experience stems from his work in the U.S. District Court for the Southern District of New York. McInerney was a lead prosecutor in the racketeering and money laundering case against Gary Singer, chairman of the Cooper Companies, an eye-care products company. Singer, represented by Theodore Wells Jr. of Paul, Weiss, Rifkind, Wharton & Garrison, was sentenced to probation and ordered to pay a $1.8 million fine. Wells called McInerney a "fantastic" pick. "I have known him as both a prosecutor and as a defense lawyer and he can best be described as a lawyers' lawyer with great judgment and integrity," he said.

McInerney, through a Justice spokeswoman, declined to comment. Click here for his Davis Polk bio.

A former colleague in New York, Patrick Fitzgerald, now the U.S. Attorney for the Northern District of Illinois, called McInerney a “terrific lawyer” who has a reputation of being a straight-shooter. “Denis is smart. He will listen. I see him as a soft spoken, steady leader. He’s a great choice,” Fitzgerald said. He added that it’s in McInerney’s advantage that he has been on both sides of the courtroom, that he can assess cases and proposed legislative changes from different angles.

DOJ, FCC Target Deaf Translation Service in National Fraud Case

Twenty-six employees of seven companies that provide translation services to the deaf and hearing impaired have been charged in a nationwide scheme to defraud the government of millions of dollars, the Justice Department announced today.

Indictments against owners and employees of the companies, including businesses in Maryland, Texas, California and New Jersey, were unsealed today. Prosecutors say the defendants were part of a scheme in which fraudulent video relay service (VRS) bills were submitted to the Federal Communications Commission for reimbursement.

VRS providers help deaf and hearing impaired individuals to communicate with others through the use of Web cameras and interpreters. The service, which is free for the user, is funded by fees assessed on telephone customers. In 2008, the FCC paid $540 million to VRS providers. An hour-long call is billed at nearly $400. FCC officials said billing irregularities prompted the investigation.

“That people would prey upon the program for their own greed is just absolutely inexcusable,” Assistant Attorney General Lanny Breuer said today at a news conference.

Authorities said the investigation is ongoing. But an FBI supervisor declined to say whether any other companies will be charged. “As this investigation moves forward, we plan to leave no stone unturned, and we will investigate the propriety of all other funds paid,” said Joseph Persichini Jr., assistant director of the FBI’s Washington field office.

FCC chief of staff Edward Lazarus said the FCC is implementing stricter oversight of the VRS program. There will be enhanced auditing and stepped-up scrutiny to identify and act on irregularities.

Prosecutors Hank Walther and Brigham Cannon from the Justice Department’s Fraud Section are handling the case. Charges were filed in the U.S. District Court for the District of New Jersey.

PTSD, First Impression Issues in Lawyer's Assault Hearing

The trial of a lawyer accused of tussling with two deputy U.S. marshals in federal district court in Washington will likely be pushed back because of an "endless blizzard" of motions from the defense, the presiding judge said yesterday.

Judge Richard Leon, of the U.S. District Court for the District of Columbia, said a delay would also give the prosecution time to find an expert witness to counter the defendant's medical claim. Ning Ye, a 57-year-old New York solo practitioner, claims he suffers from post-traumatic stress disorder from being tortured some 200 times as a teenager in China. The trial is slated to start Dec. 2.

Ye was representing an accused high-profile international methamphetamine trafficker in the U.S. District Court for the District of Columbia when the alleged skirmish happened.

Ye’s counsel, D.C. solo practitioner Gregory Smith, said one likely defense will be that Ye suffers from PTSD. But he said he is inadequately prepared to defend his client right now because the assistant U.S. attorney prosecuting the case, Karla-Dee Clark, hasn’t responded to several motions for discovery.

Smith requested personnel information about the two marshals involved in the fray, including their internal affairs complaints, complaints of racial bias or name-calling, history of fighting, personality and psychological records and medical injury claims related to the incident. Leon ordered Clark to personally seek out these records and hand them over, if they exist, within one week. But he denied motions for divorce records and workers compensation claims, calling that a “pure fishing expedition.”

Smith also requested that the judge order the U.S. marshals’ information technology service check the specific marshal’s government e-mail accounts for any references to the incident. Leon said there’s no case law to back up such a request. He asked Clark to appeal to the marshals to willingly comply before he treads on first-impression ground.

Also at issue is a video that Ye said shows one marshal striking him while he was hand- and leg-cuffed in an elevator. Clark, however, said the video is misleading. Leon decided he will view it for himself on Tuesday to decide whether it’s admissible.

Ye spoke up on this point in court, saying the marshal “caused injury” to him and that he would come down from New York for the screening because “this is a life or death situation.”

The court also considered the relevance of potential testimony about a third marshal who was in the court that day—a female marshal who was apparently close by during the skirmish but declined to jump in.

“It’s going to be very relevant how a deputy who is right there makes a decision not to go to the assistance of her colleague,” Leon said. “It would seem at first blush that she took a much less aggressive position than her colleague.”

Finally, Leon attempted to narrow the timeframe of events that can be discussed in trial. He ruled that testimony should start from the time Ye was ordered to be removed from the courtroom without touching on the issues in the trial Ye was handling at the time. Leon also said the timeframe will likely end with the events in the elevator, should he admit the video, but not include Ye’s detention and strip search in a court holding cell.

“I’m not going to turn a case that should be a relatively narrow case into some spectacle,” he said.

Hearings will resume Monday and Tuesday of next week.

AG Holder to Sept. 11 Victim's Family: 'Trust Us'

In a brief and personal chat with the mother of a Sept. 11 victim today, Attorney General Eric Holder Jr. implored the woman to "trust us," saying the Justice Department has made the right decision to prosecute terrorism suspects in federal district court.

Alice Hoagland, who lost a son when Flight 93 crashed in a Pennsylvania field, told Holder today that she takes “great exception to your decision to give short shrift to the military commissions.”

Hoagland traveled from California to attend today’s Senate Judiciary Committee hearing. Holder was the lone witness, and his decision to prosecute alleged Sept. 11 mastermind Khalid Sheikh Mohammed in federal court dominated the dialogue. Republican committee members criticized the move, calling it dangerous and unnecessary.

“I think I speak for many 9-11 families when I say that we are heartsick and weary of the delays and the machinations. I am afraid the theatrics are going to take over at this point, and I very much regret that,” Hoagland told Holder, flanked by staff and security. The attorney general and Hoagland chatted after Holder testified for four hours at the Senate Judiciary Committee oversight hearing. The chat was not planned.

“Well think of this, though,” Holder responded. “You know, for how long have these cases been pending? I’ve been attorney general now for eight or nine months, and we’ve taken, I think, the first step towards resolving these matters. We are going to go through a process. They will undoubtedly try to do things in court – as they did in the military commissions. I mean, they did things there. Judges can handle it.”

Holder said he respects Hoagland’s concerns. “I think what we have done is put in motion a process that will finally, finally resolve these matters,” he said. “I did not give short shrift to the notion of military commissions. This was a tough decision.”
Holder told Hoagland that Justice attorneys “are folks who want to enforce the law, who want to hold people accountable for the crimes that they committed and irrespective of what they might have done in their prior professional lives are hardworking DOJ employees now who I think will make the American people proud.”

Hoagland said she “abhors” torture. She said she hopes DOJ overcomes what she called “objections” from human rights groups regarding the treatment of Guantanamo Bay detainees. (Holder testified earlier that the government doesn’t need Mohammed’s statements to successfully prosecute him.)

“This is almost a trust me thing, I suppose,” Holder told Hoagland. “There are reasons why bringing this case in an Article III court, when it comes to the admissibility of certain evidence, is really the right way to go and really maximizes our chances of getting a successful outcome.”

After several minutes, back and forth, Holder and Hoagland shook hands. “I am sorry for your loss,” Holder said as he walked away.

AG Holder Defends Sept. 11 Terrorist Prosecution Decision

Updated 10:30 a.m.

Attorney General Eric Holder Jr. this morning defended his decision to prosecute the alleged mastermind of the Sept. 11 attacks and four other suspected terrorists in federal court.

"This was a tough call, and reasonable people can disagree with my conclusion that these individuals should be tried in federal court rather than a military commission," Holder said in remarks delivered before the Senate Judiciary Committee. Holder said he had no preconceived views as to the merits of either venue.

Holder said he’s confident the presiding judge will maintain decorum during hearings, including the prosecution of the alleged Sept. 11 mastermind, Khalid Sheikh Mohammed, who proclaimed during a military tribunal that he wants to become a martyr. Critics of Holder's decision to prosecute Mohammed in federal court fear the venue will create a spectacle and give Mohammed a public platform to rant.

“And if KSM makes the same statements he made in his military commission proceedings, I have every confidence the nation and world will see him for the coward he is,” Holder said. “I’m not scared of what KSM will have to say at trial.”

Sen. Jeff Sessions (R-Alabama) in his remarks said the Justice Department has reverted to a pre-Sept. 11 mentality. He called Main Justice’s decision to prosecute alleged terrorists in federal district court dangerous, misguided and unnecessary. Holder rejected the criticism in his remarks, saying that federal district courts have prosecuted suspected terrorists for years.

“Prosecuting the 9/11 defendants in federal court does not represent some larger judgment about whether or not we are at war,” Holder said. “We are at war, and we will use every instrument of national power – civilian, military, law enforcement, intelligence, diplomatic and others – to win. We need not cower in the face of this enemy. Our institutions are strong, our infrastructure is study, our resolve is firm, and our people are ready.”

Critics of the federal court forum decision are concerned about what happens in the event one or more the suspected terrorists are found not guilty. "Failure is not an option. Theses are cases that have to be won," Holder declared today at the committee hearing.

The Morning Wrap

DLA Piper Lands Daschle: Former Sen. Tom Daschle is leaving Alston & Bird to join DLA Piper as a senior policy adviser, The National Law Journal reports. Daschle will become a member of DLA Piper's governing global board. His first official day is Dec. 1.

Extending the Deadline: President Obama today acknowledged that the Guantanamo Bay military facility will not be closed by the January deadline he set, The Washington Post reports. Obama refused to set a new deadline.

GC's Firing Scrutinized: Three Bank of America officials told a congressional panel Tuesday that the firing of then general counsel Tim Mayopoulos in December was run-of-the-mill downsizing, Corporate Counsel reports. Some panel members called the testimony "very curious," "troubling" and not believable. It's the first time Bank of America executives have spoken in public about the firing of Mayopoulos.

Tougher Penalties: A bill passed by the New York State Assembly on Tuesday would significantly toughen penalties for drunken driving, The New York Times reports. New York State would make it a felony to drive while intoxicated with a child in the vehicle and would require first-time convicted drunken drivers to buy a device that prevents them from driving their cars if they have been drinking.

$280 Million Verdict Challenged: Lawyers for Turner Broadcasting and Time Warner were in the Court of Appeals of Georgia on Tuesday challenging the $280 million verdict it lost last year to David McDavid, a Texas businessman who convinced a jury that Turner had agreed to sell him the Atlanta Hawks and Atlanta Thrashers before double-crossing him, according to The Daily Report. Click here and here to watch video of the oral argument.

Dazed and Confused: The National Law Journal looks at the questions arising among employers about how far they must go to accommodate medical marijuana users.

Second Porteous Witness 'Not Strong Enough' to Cut Off Old Friend

When Louisiana lawyer Jacob Amato gave Judge G. Thomas Porteous an envelope filled with about $2,000 in cash, only "about 10 to 20 percent" of his motive was the fact the judge was presiding over Amato's high-dollar contingent-fee case. The other 80 to 90 percent, Amato said before a House special impeachment task force today, was his sympathy for a longtime friend in need.

Amato was the second person to testify today in the task force's investigation into whether the House should vote to impeach Porteous, an Eastern District of Louisiana judge accused of repeatedly soliciting and receiving cash from lawyers appearing in front of him. Porteous has also been accused of using his powers as a judge to help bail bondsmen in exchange for money and of committing perjury in his own bankruptcy case. He is currently serving a two-year suspension.

Amato said that, unlike his former law partner Robert Creely, who also testified today, he only remembers Porteous asking him directly for money one time—to help cover the cost of his son’s wedding.

Both Amato and Creely testified that they were trying to help out an old friend who needed money to cover his children’s tuition and other expenses. They said they had no idea that Porteous had run up more than $150,000 in gambling debts. All told, Amato said, they each gave Porteous about $10,000 in cash. Amato told lawmakers that the gifts were made in cash to “avoid making a paper record.”

While he was fully aware of what was going on, Amato said, Creely handled nearly all of Porteous’ requests for cash. He said the request for $2,000, which was made after Porteous was elevated to the federal bench by President Bill Clinton, was the only time he remembers the judge asking him for money.

“He came to me while we were on a fishing trip, and he was obviously upset,” Amato testified. “It was tough to see someone at the point of tears because he was trying to do something for his children, so I agreed to help him out.”

Not long before Porteous asked Amato for the money, he had denied a motion to recuse himself from a case in which Amato could have earned a contingent payment as high as $1 million. Porteous eventually found in favor of Amato’s client, but his decision was overturned by the U.S. Court of Appeals for the 5th Circuit. The court found that some of his findings “bordered on absurd” and came “close to being nonsensical.” Amato said he didn’t think Porteous ruled in his client’s favor because of the thousands of dollars he and Creely had given to Porteous over the years. “I think the Court of Appeals was wrong. I still think that,” he said.

Nonetheless, Amato said, giving the judge money was “the biggest mistake of my career.” He could have put a stop to the payments but he “wasn’t strong enough.”

“I would have had to break up my law partnership and dissolve a friendship that I had had for 30 years, and I just wasn’t strong enough to do that,” Amato said.