The BLT: The Blog of Legal Times

In Circus Elephant Spat, Animal Rights Group Wants Revival Of Claims

A Washington federal appeals court will decide whether an animal rights group has standing to challenge the alleged mistreatment of Asian elephants by handlers at Ringling Bros. and Barnum & Bailey Circus.

After a six-week bench trial in 2009, Judge Emmet Sullivan of U.S. District Court for the District of Columbia said the non-profit advocacy group Animal Protection Institute and a former circus elephant handler do not have standing to pursue the abuse claims.

Sullivan in December 2009 ruled in favor of Feld Entertainment, Inc., which produces the Ringling Bros. circus. The judge did not rule on the substance of the abuse allegations.

The API, represented by Sidley Austin partner Carter Phillips, today asked the U.S. Court of Appeals for the D.C. Circuit to reverse Sullivan’s decision.

In the appeals court, Phillips, who manages the firm’s Washington office, argued the animal rights group has spent significant resources in its effort to “uncover and combat” alleged mistreatment of Asian elephants in the Ringling Bros. circus.

But for the alleged mistreatment of the elephants, Phillips argued, the Animal Protection Institute would dedicate funds to other causes.

Arguing before D.C. Circuit judges Merrick Garland, David Tatel and Janice Rogers Brown, Phillips tried to convince the panel that Feld Entertainment’s action has harmed the Animal Protection Institute and that the group therefore has standing to challenge the circus’ practices.

Brown expressed some concern about opening the door in providing standing to everybody who advocates against a particular cause or issue. Phillips said API spends money specifically to fight the alleged abuse of Asian elephants in the Ringling Bros. circus.

The suit, originally filed in 2000 in U.S. District Court for the District of Columbia, seeks to stop chaining and “bullhooking” of Asian elephants.

Clemens' Lawyers Urge Judge to Throw Out Charges

Updated 1:25 p.m.

Lawyers for former baseball star Roger Clemens today urged a Washington federal judge to throw out the government's perjury and obstruction case, saying prosecutors engaged in misconduct in presenting to jurors evidence that was not allowed.

U.S. District Judge Reggie Walton declared a mistrial in July after prosecutors in the U.S. Attorney’s Office for the District of Columbia showed jurors a video that contained information the judge had previously said was inadmissible.

The prosecution, led by assistant U.S. attorneys Steve Durham and Daniel Butler, in court papers called the error inadvertent and asked Walton not to dismiss the case against Clemens. Durham is a supervisor in the fraud and public integrity section.

A lawyer for Clemens, Cooley partner Michael Attanasio, said in court this afternoon that the prosecution went way off track. He disputed the government’s contention the error stemmed from the “press of business.”

“Something has gone wrong here and it continues to this day,” Attanasio told Walton. “And that something is a win at all cost mentality.”

Walton expressed doubt in court this afternoon that prosecutors made a mistake.

“I would hate to believe that they blatantly disregarded rulings I made,” Walton said. “But it’s hard for me to reach any other conclusion.”

LivingSocial Multi-District Litigation Assigned to D.C. Court

A group of consumer class actions filed in federal courts across the country against LivingSocial were consolidated this week into a single multi-district litigation to take place in Washington, according to court records.

In an order (PDF) filed Aug. 22 in U.S. District Court for the District of Columbia, the U.S. Judicial Panel on Multidistrict Litigation granted LivingSocial's motion to consolidate the five cases—filed in federal courts in California (northern and southern districts), D.C., Florida and Washington state earlier this year—into a single action. The request was supported by the plaintiffs in all of the cases.

The multi-district litigation was assigned to U.S. District Judge Ellen Segal Huvelle. The panel noted that Washington was considered the most appropriate forum because LivingSocial is headquartered here.

The plaintiffs have accused LivingSocial of placing unlawful expiration dates on the “daily deals” at local businesses that are sold through the company’s Web site. The lawsuits allege violations of local consumer protection laws and the Credit Card Accountability Responsibility and Disclosure Act, which bars expiration dates of less than five years on gift certificates.

“LivingSocial and its retail partners offer these gift certificates with illegal expiration dates well aware that many consumers will not use the gift certificates before the expiration date,” the complaint (PDF) originally filed in D.C. states. “LivingSocial’ s deliberate and systematic use of abbreviated expiration dates harms and deceives consumers in the District of Columbia and throughout the United States.”

A LivingSocial representative could not immediately be reached for comment.

The plaintiffs are being represented by Charles LaDuca and William Anderson of Washington’s Cuneo Gilbert & LaDuca and Christopher Ellis of Bolen, Robinson & Ellis of Decatur, Ill. LivingSocial is being represented by a team from Cooley’s Washington, San Francisco and San Diego offices, according to court records. None of the attorneys could immediately be reached for comment.

Similar class actions were also filed earlier this year against Living Social competitor Groupon Inc., another daily deal site. Those cases were converted in June to a multi-district litigation, which was transferred to the U.S. District Court for the Southern District of California.

DOJ Urges Appeals Court To Uphold Sentence In Corruption Case

The U.S. Justice Department is urging a Washington federal appeals court to uphold the conviction and sentence against Jack Abramoff associate Michael Scanlon, an early cooperator for the government in a wide-ranging public corruption scandal.

The 20-month prison sentence imposed against Scanlon, who pleaded guilty in November 2005 to a multi-pronged conspiracy, is appropriate and should not be touched, DOJ lawyers said in court papers filed Sunday.

Scanlon is fighting in the U.S. Court of Appeals for the D.C. Circuit to convince the court to throw out one part of his plea agreement that he contends cannot stand following the U.S. Supreme Court’s ruling last year in Skilling v. U.S. that narrowed the scope of honest-services prosecutions.

Ropes & Gray partner Stephen Braga, representing Scanlon in the appeals court, said in June the honest services portion of Scanlon’s plea is unconstitutional and should be voided. Braga said that part of the deal was responsible for the more than $20 million Scanlon owes in restitution.

“The issue before this court is a narrow, but important one,” Braga said. “It is narrow because it involves the interpretation of a Supreme Court decision that is less than a year old and, hence, has little interpretive guidance in its wake to date. It is important because it involves the scope of a federal criminal statute and, thus, has important ramifications for individual liberty.”

Scanlon recently abandoned a legal challenge to the restitution in which he argued Greenberg Traurig is not entitled to compensation. Lawyers for Greenberg Traurig said in that dispute that Scanlon was unfairly trying to keep proceeds of a fraud scheme that involved Native American tribes.

Scanlon, the Justice Department said in its brief filed over the weekend, has sought full credit for his role as a cooperator while trying simultaneously to get out of any responsibility for fraud.

Judge Ellen Segal Huvelle of Washington federal district court rejected Scanlon’s request to strike the honest-services part of his plea agreement. In February, Huvelle sentenced Scanlon to 20 months in prison and to three years of supervised release.

As part of the plea deal, prosecutors agreed not to file additional charges against Scanlon and the government agreed to ask for a reduced prison sentence to award him for his extensive cooperation, said Demetra Lambros of the Criminal Division’s appellate section.

Prosecutors said Scanlon’s request to modify his plea agreement, if he were successful, would also mean he would be freed from restitution, Lambros said. Justice lawyers said Scanlon’s demand that the fraud part of his plea agreement be thrown out “is wrong from the start.”

“A plea agreement is a contract, and after a deal is struck, one side may not unilaterally try to alter the terms of the bargain,” Lambros said. “That, however, is what Scanlon is trying to do here: he wants to keep all he gained in the negotiations but take back a central portion of what he gave—and, in the end, avoid all responsibility for his fraud on the Indian tribes.”

DOJ lawyers said if Scanlon’s plea agreement is tainted, he should be forced to return to negotiations, or go to trial, rather than be allowed to receive “a one-sided sentencing windfall.”

Clemens' Lawyers Argue Prosecution Misconduct Bars Retrial

Lawyers for Roger Clemens today urged a Washington federal judge to prohibit prosecutors from putting the former baseball star on trial again, saying the government engaged in intentional misconduct and should be punished.

Clemens' attorneys, including lead counsel Russell Hardin Jr. of Houston, said the legal principle of double jeopardy prohibits a retrial. The defense lawyers also asked for dismissal of the indictment.

Judge Reggie Walton of U.S. District Court for the District of Columbia abruptly declared a mistrial July 14 after prosecutors presented evidence the judge had earlier ruled inadmissible.

The presentation of the disputed evidence occurred on the second day of testimony, and it was the second time in as many days the government drew criticism from the trial judge. Walton asked the attorneys to address whether double jeopardy precludes a retrial.

Clemens’ attorneys today set out to convince Walton that the prosecution’s conduct was intentional. The government, Hardin said, ignored court orders and shirked duties to make sure exhibits confirmed with pretrial rulings.

“The law is many things in this nation but most of all it is about fairness,” Hardin said. “The government had its day in court and squandered it with misconduct that irretrievably wasted time, money, and the opportunity for a one-time, fair resolution of these charges for all involved.”

The evidence in question was a videotape from the congressional hearing that is central to the government’s case against Clemens, who is charged with lying to Congress when he denied ever using steroids or performance-enhancing drugs.

On the video, jurors got to hear about an affidavit from the wife of former Yankees pitcher Andy Pettitte. Laura Pettitte identified two conversations she had with her husband about Clemens.

The affidavit bolsters Andy Pettitte’s claim he and Clemens discussed the use of performance-enhancing drugs. Walton had earlier ruled that prosecutors could introduce the evidence as rebuttal.

Prosecutors noted in court that Clemens’ attorneys failed to object to the evidence. The judge first picked up on the inadmissibility of the affidavit evidence. But it was the defense that had earlier asked Walton to restrict the ability of the government to use the Laura Pettitte affidavit.

"There was no intention to run afoul of any court ruling, your honor," Durham told Walton in court, court records show.

Hardin said in court papers that prosecutors “planned to put Ms. Pettitte’s statements before the jury in this backdoor fashion.”

Clemens’ attorneys argue that the two prosecutors in the case, assistant U.S. attorneys Steve Durham and Daniel Butler, knew the contents of the government’s video exhibit and that the government was “willing to go as far as possible until its conduct raised an objection.”

“At no time did the Government state that the publication of Mrs. Pettitte’s statements to the jury was accidental—because it wasn’t,” Clemens’ lawyers said. “If the publication of Mrs. Pettitte’s statements to the jury was an accident, the more natural response would have been for the prosecutors to apologize immediately or to otherwise express remorse or contrition for the oversight.”

On the first day of trial, the prosecution ran afoul of court orders and drew an admonition from Walton.

Walton interrupted Durham’s opening remarks after the prosecutor told the jury it would hear testimony from three former baseball players about their use of human growth hormone. Walton had earlier ruled out testimony of other players’ use of performance enhancing drugs.

Durham, asked to explain the violation, said in a bench conference that the testimony of the former teammates substantiates why Clemens would use drugs, according to Hardin's court filing.

“They play at the same time on the same team,” Durham said, according to court papers. “It explains why in the world this man would choose to use these drugs.”

After the discussion at the bench, Walton told jurors to disregard the prosecutor’s statement.

Prosecutors are expected to file their opposition to the defense demand by Aug. 19. A spokesman for the U.S. Attorney’s Office, William Miller, declined to comment. Walton early on imposed a gag order in the case.

DOJ Official To Defense Bar: Stop Playing Games With Ethics

From time to time, the Justice Department's Lanny Breuer takes on the criminal defense bar, chiding defenders who use prosecution mistakes to bolster attacks on ethics.

Breuer, the assistant attorney general for DOJ's Criminal Division, today took his latest shot at members of the defense community in a speech in Sun Valley, Idaho, at the National District Attorneys Association summer conference.

His speech focused in large part on the department’s effort to combat violent crime, including cartel-related drug violence on the Southwest border. At the end of the speech, according to prepared remarks, Breuer turned to prosecutors and ethics.

Breuer, who began his legal career in the Manhattan District Attorney’s Office, touted the effort the department has made to ensure all prosecutors play by the rules—especially when it comes to disclosure obligations.

In the aftermath of the collapse of the Ted Stevens public corruption case in Washington, DOJ said it stepped up training and provided more guidance to its lawyers on gathering and reviewing discoverable information. Breuer said today the department is a “better place” now than it was two years ago.

Some attorneys in the defense bar, Breuer said today, are too eager to call every government mistake an example of prosecutorial misconduct. Breuer did not identify cases and he did not name names.

“Certain defense lawyers nevertheless continue to want to try and turn honest mistakes into instances of misconduct,” Breuer said. “This kind of gamesmanship is unfortunate."

Publisher Lines Up Support In Public Corruption Case

Politicians, lawyers, business executives and at least one celebrity are supporting a popular Caribbean newspaper publisher in New York who is charged in a public corruption prosecution in Washington federal district court.

Karl Rodney, 73, publisher of Carib News, is charged with duping members of Congress about the source of funding for trips to his conferences in the Caribbean.

Rodney, according to prosecutors, claimed his foundation alone sponsored the trips for members of Congress even though foreign governments provided funding and corporations paid hundreds of thousands of dollars to the foundation for the conferences.

Rodney pleaded guilty this year. U.S. District Judge Emmet Sullivan set sentencing for July 22. Rodney’s lawyer, Charles Ogletree Jr., a Harvard Law School professor, filed hundreds of pages of letters this week in the hope of convincing Sullivan not to send Rodney to prison. Rodney faces an advisory sentencing range of probation to six months in jail.

Singer and actor Harry Belafonte, in a letter to the court, urged Sullivan to consider Rodney’s “exemplary leadership dedication” and his commitment to the Caribbean community. Belafonte said he is one of Rodney's longtime friends.

In another letter, Prime Minister of Jamaica Bruce Golding said Rodney is respected for his “outstanding leadership.” Carib News, Golding said, “does more than publishing news." Golding said the paper seeks to "build greater cohesiveness” in the Caribbean-American community.

“Karl Rodney has been for decades a Caribbean icon in the tri-state area,” Golding said. “I am personally distressed at the possibility of his incarceration and the impact that this would have on his service to the Caribbean-American community and to the Caribbean states as a whole.”

Bobblehead Alert: It's Clarence Thomas' Turn

The Supreme Court justice bobbleheads that you see on the desks or mantels of lawyers around town will soon have a new colleague to keep them company. This one depicts Justice Clarence Thomas, just in time for his 20th anniversary on the Supreme Court in October.

It's the latest creation of the unconventional law review Green Bag and its editor Ross Davies, professor at George Mason University School of Law. Thomas is the eighth modern-day justice memorialized with a bobblehead, along with six justices from earlier in the Court's history.

As with the others, the Clarence Thomas bobblehead doesn't just bobble; it tells a story, through the meticulous iconography that surrounds the justice.

For example, Thomas is shown standing on two pizza boxes, a reference to Thomas's statement in the 2005 case National Cable & Telecomm. Association v. Brand X Internet Services, "One can pick up a pizza rather than having it delivered, and one can own a dog without buying a leash. By contrast, the [Federal Communications] Commission reasonably concluded, a consumer cannot purchase Internet service without also purchasing a connection to the Internet."

Likewise, Thomas is holding an American flag which has on the reverse side the text of the 1954 federal law that added the words "under God" to the Pledge of Allegiance. The law was at issue in the 2004 case Elk Grove Unified School District v. Newdow, in which Thomas wrote a concurrence asserting the unusual view that the First Amendment's Establishment Clause does not protect an individual right or apply against state laws. The full annotation of the imagery is available at the Green Bag Web site.

As usual, the Thomas bobblehead is not for sale. "We make them for the joy of it, and then we give them away," explains Davies. The bobbleheads, made by Alexander Global Promotions, mainly go to Green Bag subscribers, though some find their way into law school charity promotions and the like. The bobbleheads also tend to make their way into the justices' chambers, to the general amusement of the members of the Court.

Davies confirms that the next bobblehead, going by Supreme Court seniority, will be Justice Ruth Bader Ginsburg, unless he decides to put out another historical figure.

 

Prosecutors, Defense Lawyers Question Potential Jurors In Clemens Case

Prosecutors and defense lawyers in the Roger Clemens case today continued examining prospective jurors, exploring their professional and family life, their interest in baseball and their thoughts on whether Congress should play any role in policing drug use in major league sports.

Four prospective jurors were questioned for an hour this morning in the courtroom of U.S. District Judge Reggie Walton. The judge swiftly excused one woman from service when she said that Clemens was probably guilty because he was charged with a crime.

Clemens, in court this morning with his lawyers, including Russell Hardin Jr. of Houston, is accused of lying to Congress under oath when he denied ever taking steroids. The former pitching star is charged with perjury and obstruction of justice.

One prospective juror, a lawyer for the Federal Communication Commission, was asked to return to court at 2:30 p.m. Wednesday, the time Walton said he’s hoping to have jury selection wrapped up.

The prospective juror, who said she once worked at Kirkland & Ellis, is employed in the FCC’s video services division and handles television licensing issues. She has worked at the agency since 1994.

She said she is close friends with the wife of Zuckerman Spaeder partner William Taylor III, who is representing former International Monetary Fund chief Dominique Strauss-Kahn. The potential juror’s husband is a solo practitioner who represents radio stations before the FCC.

Hardin, addressing the juror, expressed the general concern attorneys have over whether lawyers who serve on juries tend to control deliberation by imposing their knowledge of the law on others. “I don’t practice this kind of law,” the woman told Hardin. She said she was once a foreperson in a civil action in D.C. Superior Court.

Another prospective juror, who served as a criminal defense investigator in Superior Court for eight years, was also questioned this morning.

The woman said she did not have any negative experiences with law enforcement officials or prosecutors.

Hardin questioned the juror over whether she would be able to treat Clemens fairly even thought he made a “good deal of money” playing baseball. The woman said she could be impartial.

Assistant U.S. Attorney Steve Durham asked another prospective juror, a corporate compliance official for a software company, whether she thinks Congress should play any role in policing drug use in sports.

The woman said she was interested whether there were any “mechanisms” in place to monitor drug use prior to Congress jumping into the fray. Judge Walton said any such internal mechanism was not a part of the prosecution of Clemens. The woman replied that said she understood.

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.