The BLT: The Blog of Legal Times

DOJ Defends Review of Associated Press Phone Records

Updated 11:20 p.m.

The U.S. Justice Department is defending its review of two months of phone records for a group of reporters and editors at the Associated Press, which called the government action "a massive and unprecedented intrusion" into newsgathering.

The news agency publicly disclosed the Justice Department's review of the phone records in a protest letter to Attorney General Eric Holder Jr. "There can be no possible justification for such an overbroad collection of the telephone communications of The Associated Press and its reporters," Gary Pruitt, president and chief executive officer of the AP, wrote.

"That the Department undertook this unprecedented step without providing any notice to the AP, and without taking any steps to narrow the scope of its subpoenas to matters actually relevant to an ongoing investigation, is particularly troubling," Pruitt said. Prosecutors collected records on 20 separate phone lines.

A statement from the U.S. Attorney's Office for the District of Columbia did not reveal the nature of the investigation. The Justice Department, however, has previously disclosed that the Maryland and District of Columbia U.S. attorneys are investigating, among other national security matters, the leak of information that provided the substance of an Associated Press story, published in May 2012, about an alleged terrorist plot that was thwarted.

Members of Congress on Wednesday will get a chance to question Holder about the rare move to subpoena newspaper reporters' phone records. Holder is scheduled to testify at the House Judiciary Committee for an oversight hearing.

D.C. Circuit Weighs Child Pornography Restitution Case

The thorny question of how to calculate restitution to victims of child pornography came back before the U.S. Court of Appeals for the D.C. Circuit last week, with the U.S. Department of Justice defending a proposed formula.

Friday's arguments marked the second time the court considered the case of Michael Monzel. Monzel pleaded guilty to one count each of distribution and possession of child pornography. A trial judge ordered Monzel to pay $5,000 to a victim known by the pseudonym "Amy," but on remand from the D.C. Circuit reduced the award to zero, finding the government didn't produce evidence on how much of Amy's losses he caused.

The government appealed, arguing U.S. District Judge Gladys Kessler was wrong to reduce the award and that its proposed formula – dividing a victim's total losses by the number of individuals found criminally responsible and then adjusting based on certain factors – represented a fair solution. Monzel's lawyer, Federal Public Defender A.J. Kramer, said the formula was arbitrary and that Kessler was right to reduce the award after the government presented no evidence linking his client to specific losses.

DOJ Asks D.C. Circuit to Keep Surveillance Law Memo Secret

The Justice Department wants to keep secret an internal legal memo that addresses the scope of the authority under which the FBI can seek records from telecommunications companies.

DOJ lawyers have asked the U.S. Court of Appeals for the D.C. Circuit to protect the Office of Legal Counsel memo from disclosure in an ongoing public records suit. The government contends the document is protected by the deliberative process privilege.

"Mandatory disclosure of OLC's opinions would chill deliberative discussions within the Executive Branch," Daniel Tenny, a Justice Department appellate lawyer, said in a brief filed in the appeals court May 7. "OLC serves a valuable role in providing confidential legal advice to federal agencies as they develop their policies."

The Morning Wrap

Facing scrutiny: FBI Director Robert Mueller III's "12-year tenure under two presidents is facing scrutiny, months from his longtime plans to step down in September, as hearings begin on Capitol Hill into what happened in Boston and why," The New York Times reports today. Mueller took over leadership of the FBI one week before the Sept. 11 attacks.

Bloggers win: "The U.S. Court of Appeals for the Ninth Circuit sided with bloggers in a closely watched copyright dispute Thursday, ruling that a company suing them for posting articles lacked standing to do so," The Recorder reports.

Plundered: From The Washington Post today: "A global posse of cyberthieves, armed with laptops in place of guns, hacked into financial institutions and stole $45 million from automated teller machines in a first-of-its-kind heist made for the 21st century, authorities in New York said Thursday." More coverage here and here.

Speaking: Top lawyers will hit the commencement circuit in the coming weeks, addressing law schools across the country, The National Law Journal reports. "U.S. Solicitor General Donald Verrilli, Jr., wins the prize for busiest graduation speaker. He will address graduates of the University of the District of Columbia David A. Clarke School of Law on May 10; of Duke Law School graduates the next day; and of Boston University School of Law on May 19."

Washington Attorney Gets Prison for Stealing from Clients

A Washington-based attorney who admitted in January to stealing more than $100,000 intended for his clients has been sentenced to six months in prison, followed by six months of house arrest.

Deairich Hunter was sentenced Thursday for pilfering payments to settle disability and personal injury claims by his clients. As part of his punishment, Hunter was ordered by U.S. District Judge Beryl Howell to pay restitution of $253,549 and forfeit $73,901.

From 2003 to 2009, Hunter was hired by clients in disputes arising from disability and personal injury claims. Many of the clients agreed he was entitled to one third of the recovery, according to court papers. Hunter failed to notify some of his clients, however, keeping settlement money for himself. Hunter was disbarred in 2009. Hunter pleaded guilty in January to theft or embezzlement related to health care.

The Morning Wrap

More Jobs: The legal industry in April picked up 2,100 jobs, The Am Law Daily reports.

Seeking Release: Robel Phillipos, the Dzhokhar Tsarnaev friend accused of lying to authorities probing the Boston Marathon bombing, will try to secure his release from federal custody on Monday, The New York Times reports. Derege Demissie and Susan Church, Phillipo's lawyers, said in the court papers that the charges against their client were "refutable."

Tax Bill: Internet sales tax legislation is expected to go up for a vote in the U.S. Senate on Monday, CNNMoney reports. "We think this will help level the playing field," said Stephen Schatz, a spokesman for the National Retail Federation, one of the bill's biggest backers.

'Coercive' Jury Instruction Means New Trial in Murder Case

A man convicted of second-degree murder in a 2005 shooting will get a new trial after the District of Columbia Court of Appeals ruled today that the trial judge gave an "impermissibly coercive" instruction to the jury.

After a jury told District of Columbia Superior Court Judge Michael Rankin they couldn't reach a decision, the judge gave an instruction that crossed the line from communicating his desire for a verdict to making it seem as though the jury had to reach a verdict, the appeals court said.

Because coercion was "probable," Judge Stephen Glickman wrote for the panel, "we are unable to 'say with assurance that the jury arrived at its verdict freely and fairly.'"

DOJ Report Urges Prison Reform for Compassionate Release

A comprehensive review of the federal prison system’s compassionate release program revealed a lack of standards for the evaluation of whether an inmate qualifies for a reduction in sentence, according to a U.S. Justice Department report published today.

The department's Office of the Inspector General found Bureau of Prisons staff had "varied and inconsistent understandings of circumstances that warranted consideration of compassionate release." Prison officials, the report also concluded, don't have effective procedures in place to inform inmates about the potential for compassionate release.

Under the program, the bureau can ask a federal judge to end a sentence based on "extraordinary and compelling" circumstances that were not present at the time the defendant was sentenced. In the six-year review period ending in 2011, the report said 142 inmates were approved for, and received, compassionate release. Click here for a copy of the report.

The DOJ report cited "multiple failures" in the implementation of compassionate release. The report found, among other things, disparate criteria for eligibility. For instance: at some prisons, only inmates with a life expectancy of six months or less were eligible. At others, inmates with a life expectancy of under a year were deemed eligible.

Former Bush Administration Lawyer Asks Judge for Probation

Federal prosecutors will not oppose a sentence of probation for a former George W. Bush administration lawyer who's charged in Washington with the destruction of government property.

Prosecutors in December charged Scott Bloch, the former head of the Office of Special Counsel, with the misdemeanor crime of destruction of property for his role in deletion of files from government computers.

The charge carries a guideline range of probation to six months in jail. Prosecutors said Monday in a sentencing memo, filed in U.S. District Court for the District of Columbia, that the government will not challenge a sentence at the lowest end of the range.

If Bloch is sentenced to probation, prosecutors asked for two conditions: a $5,000 fine and 200 hours of community service. Bloch, who practices in employment law in Washington, pleaded guilty to the charge in February.

D.C. Court of Appeals Chief Unopposed for Third Term

In 2012, the median time for the District of Columbia Court of Appeals to resolve cases was 352 days. It was the first time in a decade that number dropped below the one-year line, and as Chief Judge Eric Washington prepares for what will likely be another tem as chief, he says he wants to do better.

Washington is unopposed in his bid for a third four-year term leading the city's highest local court. He is widely credited with making the court more efficient, but complaints about case backlogs have persisted. In his application materials, Washington wrote that "fair and timely resolution" of cases remains a top priority.

According to court statistics, the median number of days it took the court to resolve cases dropped from 10-year highs of 505 days in 2002 and 2007 to 352 days last year. The average time it took to resolve cases remained higher—a sign that certain cases are still taking much longer—although the court also reached a 10-year low of 427 days last year.