The BLT: The Blog of Legal Times

Senate Confirms Two to D.C. Superior Court

If only every judicial nominee were this lucky. A little over a week after appearing before a U.S. Senate committee for a confirmation hearing, the Senate voted yesterday to confirm two local attorneys to the District of Columbia Superior Court.

President Barack Obama nominated solo practitioner Michael O'Keefe and federal prosecutor Robert Okun to the court in March and they appeared before the Senate Committee on Homeland Security and Governmental Affairs on May 15. They faced no opposition, and the committee gave them a favorable vote on May 22.

Nominees to the city's local courts—who, unlike other state and local court judges, are picked by the White House and confirmed by the Senate—tend not to get caught up in partisan gridlock that can snag nominees to the federal trial and appellate courts. However, the nominations are never a sure thing: senators put holds on at least two nominees during Obama's first term and the Senate returned three nominees to the White House in January, including Okun, after senators failed to take action before the end of the term.

Court Rules Cooperating Inmate Not A 'Government Agent'

As part of a plea deal with federal prosecutors in the late 1990s, Charles Bender agreed to cooperate with law enforcement authorities in future investigations. Several months later, Bender reported to the FBI that a fellow prison inmate, William Watson, confessed to a fatal shooting and Bender testified as a prosecution witness against Watson at trial.

Watson appealed his conviction, arguing his Sixth Amendment right to counsel was violated because Bender was acting as a government agent when the two spoke, given his relationship with law enforcement. Today, the District of Columbia Court of Appeals upheld Watson's conviction, finding that although Bender was serving in other capacities as a government informant, he wasn't acting at their behest in Watson's case.

Watson's attorney on appeal, D.C. solo practitioner Jenifer Wicks, argued Bender's agreement to cooperate with the authorities represented an implicit direction by the government to collect information from other prisoners if he had the opportunity.

D.C. Superior Court Nominees Voted Out of Committee

The U.S. Senate will consider two nominees for District of Columbia Superior Court following a favorable vote yesterday by a Senate committee.

Nominees Robert Okun and Michael O'Keefe appeared a week ago before the Senate Committee on Homeland Security and Governmental Affairs for their confirmation hearing. They faced no opposition.

There are five current or expected vacancies on the Superior Court bench. Okun and O'Keefe are the only nominees before the Senate. The White House is weighing possible nominees for the other judicial seats recommended by the local body that vets applicants for the local courts, the District of Columbia Judicial Nomination Commission.

Judge Says Filing Errors May Prompt Review of 'Hundreds' of Cases

The chief judge of Washington's federal district court said he expects the court will have to review hundreds of arrest and search warrant dockets after learning this week that the clerk's office failed to publicly file an unsealed search warrant in a high-profile government leaks case.

In an order entered today, U.S. District Chief Judge Royce Lamberth apologized for a series of administrative errors that resulted in the continued secrecy of materials that had been previously unsealed in the case against Stephen Jin-Woo Kim, a former government adviser accused of leaking classified information about North Korea. The order was first reported by The Washington Post. As part of the leaks investigation, prosecutors obtained a search warrant to review Fox News reporter James Rosen's e-mails.

In an interview today, Lamberth said the mistakes were the result of human error in the clerk's office and he had no sense yet of whether similar problems occurred in other cases. "We're a public institution, we're accountable to the public," Lamberth said. "We shouldn't allow this to happen."

The Morning Wrap

IRS: Receiving little direction, the Internal Revenue Service's Cincinnati outpost faced difficulties handling groups seeking tax exemptions, The New York Times reports. "The IRS is pretty dysfunctional to begin with, and this case brought all those dysfunctions to their worst," said Paul Streckfus, a former IRS employee who runs a newsletter devoted to tax-exempt organizations.

Obama Plans: President Barack Obama on Thursday will discuss how he plans to bring the drone program and the Guantanamo Bay, Cuba, military prison in line with the legal framework he said he would follow after taking office, The Washington Post reports.

Roberts Trip: U.S. Supreme Court Chief Justice John Roberts Jr. was in Jamestown, N.Y., on Friday for the 10th anniversary of a center dedicated to the late Justice Robert Jackson, The Associated Press reports. Jackson's grandchildren gave Roberts a life-size bronze bust of Jackson. "It will occupy a place of great prominence at the court," Roberts said, "just as his portrait does."

D.C. Court: Judges Can Investigate Juror Racial Bias

Judges confronted with allegations of racial or ethnic bias among jurors are allowed to investigate the claims, the District of Columbia Court of Appeals ruled yesterday. The opinion created a new exception to case law historically barring judges from questioning jurors about their process.

Whether judges can probe racial or ethnic bias among jurors after a verdict is an issue that's divided federal courts, according to the opinion, which was written by Judge Anna Blackburne-Rigsby. The three-judge panel found a juror's allegation of racist statements made by another juror wasn't evidence of "extraneous influence" on a verdict – a standard for examining juror behavior – but was still serious enough to raise constitutional concerns.

"The insidiousness of racial or ethnic bias is therefore distinguishable from other forms of juror misconduct or incompetence," Blackburne-Rigsby wrote. "[W]e are unwilling to rigidly bind the discretion of trial judges to prevent further inquiry where it may be necessary to ensure that a defendant's constitutional rights to a fair and impartial trial and jury are not jeopardized by racial or ethnic bias."

D.C. Superior Court Nominees Testify in the Senate

Two lawyers who spent most of their careers on opposite sides of a courtroom testified today before a U.S. Senate committee in the hopes of serving together on the District of Columbia Superior Court bench.

Washington solo practitioner Michael O'Keefe, whose practice is mostly in criminal defense and family law, and Robert Okun, chief of the special proceedings division at the U.S. attorney's office in D.C., were nominated by the White House in March. At today's hearing, they pitched their extensive history practicing in Superior Court and experience working with a variety of litigants, including those without a lawyer.

Neither nominee faced criticism. Sen. Mark Begich (D-Alaska), who chairs the subcommittee overseeing District of Columbia affairs, said they were "well-qualified" to serve. The nominees did face questions from Sen. Rand Paul (R-Ky.), the subcommittee's ranking member, about their views on the city's gun laws, which have been the subject of legal challenges; both said they would abide by rulings from the U.S. Supreme Court and District of Columbia Court of Appeals.

Report: 'Confusion' About D.C. Post-Arrest Procedures

Updated at 3:36 p.m.

A committee of prosecutors, defense lawyers and law enforcement officials are calling on the District of Columbia Council to reform laws surrounding post-arrest procedures, identifying "confusion" among the public and within the criminal justice system.

A report published by the Council for Court Excellence recommended legislative changes that would clarify eligibility for certain-post arrest options and urged law enforcement agencies to create "plain English" descriptions of those options for arrestees.

"It puts the public on notice in a little clearer way: for these offenses, here are the potential options," said Cliff Keenan, director of the Pretrial Services Agency for the District of Columbia and chair of the group that put together the report.

The Morning Wrap

Chevron Allegations: Chevron Corp. on Friday accused Patton Boggs of fraud in a case that ended in a $19 billion environmental pollution judgment against the oil company in Ecuador, The Litigation Daily reports.

Ginsburg Roe: U.S. Supreme Court Justice Ruth Bader Ginsburg on Saturday said she backs a woman's right to choose to have an abortion, but the Roe v. Wade decision was too sweeping, The Associated Press reports.

Facebook Departure: Facebook Inc. general counsel Theodore Ullyot is leaving the company, The Recorder reports.

Age Discrimination Suit Against Georgetown Law Dismissed

Former North Dakota Attorney General Nicholas Spaeth has lost his age discrimination lawsuit against Georgetown University Law Center. A Washington federal judge ruled yesterday that Georgetown presented non-discriminatory reasons – chiefly, Spaeth's lack of academic scholarship – for rejecting his application for a tenure-track teaching job.

After a long career practicing law in government and private practice, Spaeth began pursuing law school teaching posts around 2009. He sued Georgetown and five other schools in U.S. District Court for the District of Columbia after he failed to get an interview through the Association of American Law Schools faculty recruitment conference in 2010.

In yesterday's opinion, Huvelle found the record was clear that academic scholarship was a "primary concern" for Georgetown in weighing applicants. Spaeth failed to list any relevant publications in his application, she wrote, rebuffing Spaeth's argument that the focus on scholarship was a pretext for age-based bias. Even if Spaeth made it to the interview stage, she found, he failed to show he would have been hired over the three applicants who did get teaching jobs that year.