The BLT: The Blog of Legal Times

The Morning Wrap

DOJ Setback: Federal officials say a retrial of John Edwards on campaign finance charges is unlikely following an acquittal on one count and a deadlocked jury on others. DOJ defends its Public Integrity Section in a piece in the The New York Times. Verdict coverage here from The Charlotte Observer.

Dismissed: Google Inc. scored a big win in San Francisco federal district court, where a judge dismissed claims the Android mobile phone platform violates Oracle Corp. copyrights, The Recorder reports. Oracle intends to appeal.

Tracking: The U.S. Justice Department is defending the government's ability to place tracking devices on vehicles without first obtaining a warrant, The Wall Street Journal reports. Prosecutors told an appeals court that a landmark U.S. Supreme Court decision this year about police surveillance did not mandate that agents obtain a warrant before attaching a GPS device to a suspect's vehicle.

Judge Blocks Shipment of 'Unapproved' Drug Used in Lethal Injections

A District of Columbia federal judge today ruled in favor of a group of death row inmates seeking a court order to stop the shipment of a "misbranded and unapproved" drug used in state legal injections.

U.S. District Judge Richard Leon found (PDF) that the Food and Drug Administration acted "arbitrarily and capriciously and abused its discretion" in approving shipments of sodium thiopental, commonly known as thiopental, which is used to induce general anesthesia during the lethal injection process.

The FDA had argued that it allowed the shipments out of deference to law enforcement officials when it came to lethal injections. Leon rejected that argument, writing that federal law clearly requires the FDA to review and approve all drugs.

“In the final analysis, the FDA appears to be simply wrapping itself in the flag of law enforcement discretion to justify its authority and masquerade an otherwise seemingly callous indifference to the health consequences of those imminently facing the executioner's needle,” Leon wrote. “How utterly disappointing!”

Lead counsel for the plaintiffs, Bradford Berenson of Sidley Austin in Washington, said in a phone interview today that Leon’s decision was “gratifying.”

“He saw that the agency was behaving in a clearly unlawful way and took steps to make sure that even the most despised members of society got the benefit of the protections that Congress put in place,” he said.

The FDA, through a spokeswoman, declined to comment.

The inmates, who are in jails in Arizona, California and Tennessee, sued the FDA in U.S. District Court for the District of Columbia in February 2011, accusing officials of approving shipments of thiopental without first reviewing and approving the drug in accordance with the federal Food, Drug, and Cosmetic Act.

Former Fed Scientist Sentenced to 13 Years in Espionage Case

An acclaimed former government scientist who was ensnared in an undercover FBI sting was sentenced today to 13 years in federal prison on charges he tried to sell secrets to a foreign intelligence agent.

Stewart Nozette, who pleaded guilty in September in U.S. District Court for the District of Columbia to attempted espionage, expressed remorse in court today for a lack of judgment.

Nozette, dressed in orange jail garb, was also sentenced today to about three years in prison for a tax fraud case. The sentence will be served simultaneously with the term he received for attempted espionage. Nozette, prosecutors said, believed he was dealing with an Israeli agent when he agreed to reveal classified information.

“Stewart Nozette's greed exceeded his loyalty to our country,” U.S. Attorney Ronald Machen Jr. said in a prepared statement. “He wasted his talent and ruined his reputation by agreeing to sell national secrets to someone he believed was a foreign agent.”

Nozette’s defense lawyers said Nozette, a noted scientist in the space industry, “never took a single step of his own volition” to betray his country. The attorneys, who included John Kiyonaga of Alexandria and Robert Tucker of Arlington, said the FBI preyed on a vulnerable man.

Sidley Austin partner Brad Berenson, who represented Nozette in the fraud case, said in court today that the attempted espionage charge was the product of “functional entrapment.”

“The government created the opportunity, tailor-made the circumstances…and essentially created both the crime and the criminal,” Berenson said in court today. He called the government’s conduct “at a bare minimum very ignoble, dishonorable.”

Assistant U.S. attorneys Anthony Asuncion and Michael Atkinson portrayed Nozette as a man motivated by greed.

Asuncion played a four-minute undercover video clip today that showed a smiling Nozette, sitting casually on a couch in a hotel as he discussed sharing information with an FBI agent posing as a foreign intelligence agent. He described Nozette as having “unbridled enthusiasm” to become a traitor of the United States.

In court papers, prosecutors included excerpts from the videos. “I don’t get recruited by Mossad every day,” Nozette said in one conversation. “I knew this day would come.”

The Morning Wrap

Readying: Prosecutors handling the civil case against BP PLC are expected to accuse the oil giant of decisions that led to gross negligence in the explosion of the Deepwater Horizon well last April, The Wall Street Journal reports, citing sealed documents. The trial in New Orleans federal district court is scheduled to begin Monday. The National Law Journal's preview of the trial is here.

Challenging: Nebraska's attorney general is leading a suit against the Obama administration over the requirement that employers cover contraception in health care plans. The Wall Street Journal reports seven states are participating in the action, the first filed to challenge the contraception requirement.

Tracking: The Obama administration has released a "Consumer Privacy Bill of Rights" in an effort to give Internet users more control over how companies track and use personal information, The National Law Journal reports. Attorneys are concerned the bill of rights could spur lawsuits.

Blaming: A former chairman and chief executive officer of Kellogg, Brown & Root Inc. was sentenced yesterday to 30 months in prison for conspiring to violate the Foreign Corrupt Practices Act. Albert "Jack" Stanley blamed his bribing of Nigerian officials on "ambition, ego and alcohol."

Celebrating: Proponents of same-sex marriage heralded the Maryland Senate's passage of a bill that would make the state the eighth in the country to allow such unions, The Washington Post reports. Gov. Martin O'Malley (D) has vowed to sign the bill. Conservative and Catholic groups said they will fight to repeal the measure.

Breaking: Bank of America is no longer selling new mortgages to Fannie Mae, The New York Times reports, in a move that highlights the legal battle over the purchase of defaulted mortgages. Bank of America was Fannie’s third-largest provider last year, Inside Mortgage Finance reported.

Covington Posts Growth in Gross Revenue, Profits Per Partner in 2011

Covington & Burling posted increases in gross revenue, profits per partner and net income for fiscal year 2011, welcome news after the firm saw little or no growth in those same areas in 2010.

Gross revenue grew by 5.1 percent for the Washington-based firm, from $581.5 million in fiscal year 2010 to $611 million last year, according to our reporting. Profits per partner were up by 3.9 percent during that same period, from $1.155 million to $1.2 million, and net income grew by 6.4 percent, from $259 million to $275.5 million.

Firm chair Timothy Hester said the data reflect steady investment in headcount and international presence, even as the recession took a toll on the firm's bottom line in the past. In 2011, the firm added attorneys in its London, Beijing and other overseas offices, and just announced plans to open a Shanghai office later this year.

“We thought the right strategy for the firm was to expand our scale,” Hester said, adding, “We were prepared to hang tough.”

During Covington's 2011 fiscal year, which ended Sept. 30, the firm took on more patent litigation work, thanks to its growing California presence, Hester said. Attorneys in the San Francisco office also assisted Microsoft Corp. with its $8.5 billion purchase of Skype Global, along with other big transactional work.

The firm continued to grow its core practices as well. In the regulatory arena, the firm saw growth in its life sciences and banking practices, Hester said. On the life sciences front, notably, the firm has represented Eli Lilly & Co. in a dispute with Amylin Pharmaceuticals Inc. over a new diabetes drug, winning the denial of a preliminary injunction that would have stood in the way of Eli Lilly’s marketing efforts.

D.C. Appeals Court Upholds Use of Handwriting Evidence

Handwriting analysis will continue to be admissible as scientific evidence in local courts, the District of Columbia Court of Appeals ruled in an opinion (PDF) published this morning.

A handwritten note discovered at the crime scene played a major role in the trial of Robert Pettus, who was convicted of first-degree murder in 2008. On appeal, Pettus argued that a 2009 report by the National Research Council of the National Academies cast new and serious doubts on the reliability of the forensic sciences, including handwriting analysis.

Senior Judge Michael Farrell, writing for the three-judge panel, acknowledged that Pettus and the D.C. Public Defender Service, which argued the case as an amicus party, made “a spirited attack” on the acceptance of pattern-matching analysis.

However, the court found that the report failed to detail specific problems with handwriting analysis – as opposed to the forensic sciences as a whole – and that the methodology behind handwriting analysis is “well-established and accepted in the forensic science community generally.”

Pettus’ attorney, solo practitioner Thomas Heslep, said this morning that he was still reviewing the opinion, but expected that he would petition for a rehearing before the whole court. A representative for the Public Defender Service did not immediately return a request for comment, and U.S. attorney office spokesman William Miller declined to comment.

Police charged Pettus in the 2004 death of 77-year-old Martha Byrd. Byrd, who was Pettus’ neighbor, was found stabbed and strangled in her home. During the crime scene investigation, police discovered a handwritten note left on Byrd’s body that read, “You souldins [sic] have cheated on me."

In Shooting of D.C. Police Officer, Appeals Court Grants New Trial

The District of Columbia Court of Appeals ordered (PDF) a new trial this morning for Ronald Coles, a local man convicted of shooting a police officer in the leg during a 2007 confrontation. The court found that the trial judge erred in barring Coles' attorney from pursuing a line of questioning about whether police had conspired to cover up evidence that an officer, and not Coles, fired the gun.

While on patrol in the Trinidad neighborhood in April 2007, three police officers saw Coles and another man carrying Styrofoam cups and suspected they were in violation of the city's open container laws. When they attempted to confront Coles, he ran, and allegedly held a hand to his waistband as if he had a gun there.

The officers caught up to him and, during the struggle, a single shot was fired, passing through one officer’s calf and striking Coles in the thigh. The gun was recovered and prosecutors attempted to prove at trial that it belonged to Coles. Coles' attorney argued a theory that one of the officers had fired the shot – he presented evidence that Coles couldn’t have hit the officers’ leg and his own had he fired near his waist – and then conspired to cover it up.

A District of Columbia Superior Court jury convicted Coles in March 2009 of aggravated assault, resisting a police officer and illegal possession of a firearm and ammunition. He was sentenced to serve six years in jail.

On appeal, Coles argued that Superior Court Judge Lynn Leibovitz should have allowed his attorney to question the officers about issues surrounding the police reports filed on the incident. Coles’ attorney wanted to ask about similarities in the wording of two officers’ reports, in support of the defense theory that the officers had worked together to come up with a similar version of events.

The Morning Wrap

Blackout: Many popular sites on the internet - including Google, Wikipedia, Reddit and Fark - went dark yesterday in protest of two internet legislation bills that opponents say would cripple free speech and the internet. The Hill reports that many lawmakers have withdrawn their support within the past 24 hours.

Keystone XL: President Barack Obama rejected plans to move forward with the controversial Keystone XL pipeline. Politico reports that the decision is a win-win for both parties.

Copyright: Just because something was in the public domain, doesn't always means it will stay there. The U.S. Supreme Court ruled yesterday that the Constitution doesn't prevent Congress from granting copyright protection to previously free, foreign works. The National Law Journal's Marcia Coyle reports.

Monument: A Bethesda billionaire will donate $7.5 million toward the repair costs of the Washington Monument. The Washington Post is reporting that government officials will make the announcement today.  

Alternate-side: New York City Council voted to ban the sanitation department from pasting stickers on vehicles that failed to move for street cleanings. The council argued the stickers violated the right to due process. The New York Times is there with a razor blade, rubbing alcohol and a jar of peanut butter to help you scrape it off.

With Lawsuit Pending, Politicians Press Park Service to Clean Up Occupy D.C.

A Washington federal judge is set to hear arguments later this month on a challenge to future efforts to evict Occupy D.C. demonstrators, but in the meantime, the National Park Service is fielding new calls to move and clean up the site.

Yesterday, Washington Mayor Vincent Gray (D) sent a letter (PDF) to National Park Service Director Jonathan Jarvis, calling on the agency to consider moving the protesters in McPherson Square to the other Occupy D.C. site at Freedom Plaza, at a minimum.

U.S. Rep. Darrell Issa (R-Calif.) issued a statement yesterday evening in support of Gray’s letter, criticizing the “National Park Service’s decision to ignore laws designed to protect the public.” Issa sent a letter (PDF) to Interior Department Secretary Ken Salazar on Tuesday, requesting more information on how the Park Service has managed the site by Jan. 24.

Absent an emergency situation, though, the agency is restricted from taking action to disturb the site without first giving U.S. District Judge James Boasberg 24-hour notice. A group of Occupy D.C. protesters in McPherson Square sued the Park Service on Dec. 5 to stop them from removing tents; Boasberg is scheduled to hear oral arguments on Jan. 31 on a motion for a preliminary injunction.

Washington solo practitioner Jeffrey Light, who is representing the protesters, said in an e-mail this morning that, “The calls by Congressman Issa and Mayor Gray for removal of the tents at McPherson Square demonstrate that the protesters' fear of an eviction is well-founded. “

The Occupy D.C. site at McPherson Square moved back into the spotlight this week as new reports raised concerns health and sanitary conditions at the encampment.

Appeals Court Weighs Whether Late Disclosure of Witness' PCP Use Warrants Reversal

The District of Columbia Court of Appeals heard oral arguments this morning on whether a last-minute revelation of PCP use by an eyewitness in an attempted murder and sexual assault case merits a reversal.

Michael Robinson, Davone Kellibrew and Steven Edwards were convicted by a District of Columbia Superior Court jury in 2008 of kidnapping a local woman, Donna Terry, sexually assaulting her and then leaving her for dead after shooting her multiple times in the stomach, chest and back.

Terry survived, however, and served as the government's main eyewitness at trial. Prosecutors handed over evidence of Terry's ongoing drug use during discovery, but defense attorneys claimed that they were shocked during the trial to hear Terry testify that she had used PCP less than 24 hours before the alleged crime.

Superior Court Judge Herbert Dixon denied the defense attorneys’ request at that point to put an expert witness on the stand to testify about how PCP can affect perception and recollection soon after its use; Dixon also denied a request for a new trial.

Dixon also denied the defense attorneys’ objection to the prosecutor’s rebuttal statements, which they argued unlawfully shifted the burden of proving innocence to the defense. The prosecutor had said that, “If someone wants to prove that because [Terry] took PCP something like 15 and 20 hours before the time that she was taken on this ride, if someone wants to suggest that that had something to do with her recollection of events, they need to bring some evidence on that.”

On appeal, attorneys for the three men argued that prosecutors failed to turn over information on Terry’s drug use the day before she was shot as soon as they found out about it, in violation of Brady v. Maryland. The government responded that prosecutors disclosed Terry’s habitual drug use well in advance of trial, and that they didn’t know about her use of PCP the day before the alleged crime either.