The BLT: The Blog of Legal Times

Defense Lawyers in Wone Case Want Gag Order

Lawyers for three defendants in a wrongful death suit stemming from the murder of Washington attorney Robert Wone have asked a judge to ban the attorneys in the case from speaking publicly about the litigation.

The defendants, former Arent Fox partner Joseph Price and two roommates, Victor Zaborsky and Dylan Ward, are accused in D.C. Superior Court of covering up the Wone homicide in August 2006. Price, Zaborsky and Ward lived together in the Northwest Washington home where Wone was fatally stabbed.

Following a month-long bench trial on charges that included conspiracy and obstruction of justice, Price, Zaborsky and Ward were acquitted earlier this year. The authorities have not brought a murder charge in the case. None of the defendants testified in the criminal prosecution, and in the civil arena each of the men has refused to answer interrogatories from the attorneys representing Wone’s widow.

The defense lawyers for the three men said they want a gag order to minimize the risk of tainting the jury pool. The plaintiffs’ attorneys, who include Benjamin Razi, a Covington & Burling partner in Washington, are planning to challenge the defense request for a gag order.

The attorneys base their request in part on a comment that a plaintiffs’ attorney, Patrick Regan, made to reporters last month following a hearing in the civil suit. Regan of Washington’s Regan, Zambri & Long told reporters, at the end of the hearing and outside the courtroom: “Defendants do not assert their Fifth Amendment rights if they are not guilty of something,” Regan said.

The attorneys for Price, Zaborsky and Ward—including Craig Roswell, David Schertler and Frank Daily, respectively—said in a joint filing Oct. 8 that Regan’s comment was “patently incorrect” and that it will only serve to poison the jury pool.

“There was no legitimate purpose for making such a statement,” the defense lawyers said in the filing. The attorneys said the assertion of the defendants’ Fifth Amendment right “should not be used by the plaintiff’s counsel to influence jury selection through the press more than a year before the trial is scheduled to begin.”

In the request for a ban on public comment on the case, the defense lawyers did some homework on Covington & Burling. The defense attorneys said in a footnote that “one would expect” Covington, which maintains a large white-collar criminal defense practice, to take issue with Regan’s remark about the Fifth Amendment.

The lawyers for Price, Zaborsky and Ward include as exhibits the gag orders that Judge Reggie Walton of Washington federal district court issued in the Scooter Libby criminal prosecution and in civil litigation involving security contractor Blackwater. More recently, Walton issued a gag order in the perjury case against baseball star Roger Clemens.

D.C. Circuit Vacates Sex Offender's Computer Restrictions

A federal appeals court today vacated restrictions imposed on a convicted sex offender that required him to keep a daily log of his computer use and to permit the authorities to monitor that use, saying that the trial judge failed to articulate why the limits were necessary for a crime that did not involve the Internet.

The defendant, Aaron Burroughs, a volunteer football coach in Maryland, was convicted on charges of sexually exploiting a minor and was sentenced to about 16 years in federal prison.

But the offense, which involved a 14-year-old girl and prostitution, did not involve the use of a computer and Burroughs has no prior history of illicit computer use, court records show. A three-judge panel of the U.S. Court of Appeals for the D.C. Circuit voted 2 - 1 in vacating two computer use restrictions but kept in place a third—the requirement that he inform any potential employer of any computer-related conditions of his supervised release.

The appeals court said the trial judge failed to explain why the government should be allowed to monitor Burroughs’s Internet use and why he should be required to keep a daily log of his computer use. Chief Judge David Sentelle and Judge Thomas Griffith said there was a lack of evidence in the record supporting those two conditions. The court remanded for additional proceedings.

“The government argues that these restrictions are related to Burroughs’s conduct because the Internet can be used to arrange sexual encounters with minors and to advertise minors for prostitution,” Griffith wrote. “Of course it can. But from drug dealers and Ponzi schemers and smugglers to stalkers—nearly any criminal can use the Internet to facilitate illegal conduct.”

The appeals court majority said it disagrees that the computer restrictions are “reasonably related” to the sex offenses. Judge Janice Rogers Brown said in dissent that she would have affirmed the district judge's sentence in all respects. The computer restrictions against Burroughs cannot be likened to full computer use bans that the majority points to, Brown said.

“Not knowing the court’s reasons for imposing these conditions, finding the government’s reasons unsupported by the record, and unable to identify any ourselves, we vacate the conditions as plainly out of sync with the relevant factors and remand for further proceedings,” Griffith said.

The court said that if Internet restrictions were appropriate for every defendant convicted of a sex offense against a minor, the federal sentencing guidelines would say as much.

Judge: 'Powerful' Evidence in Wone Case, But Not Enough

By Jeff Jeffrey and Mike Scarcella

Judge Lynn Leibovitz spent more than an hour reading aloud her 38-page opinion in D.C. Superior Court today.

In finding Joseph Price, Victor Zaborsky and Dylan Ward not guilty on all counts, Leibovitz said that, while prosecutors had provided “powerful” evidence suggesting that one of the three housemates either stabbed Washington attorney Robert Wone or knows who did, the government failed to prove “beyond a reasonable doubt” that they intended to disrupt the investigation into Wone’s death.

The judge’s verdict marks the conclusion of the criminal case that has transfixed Washington for the past four years.

The three men faced charges of obstruction of justice and conspiracy to obstruct justice. Price also faced a charge of tampering with evidence. Leibovitz dismissed the tampering charge against Zaborsky and Ward on June 17, saying there was no evidence that they touched the knife or the victim, the evidence in question on the tampering count. Nobody has been charged with Wone’s murder.

The judge told a packed courtroom today that it is “very probable that the government’s theory is correct—that, even if the defendants did not participate in the murder, some or all of them knew enough about the circumstances of it to provide helpful information to law enforcement and have chosen to withhold that information for reasons of their own.” But, as Leibovitz pointed out, “probable” is not “beyond a reasonable doubt.”

Liu Offers 'Sincere and Humblest Apology' to Senators

Appellate court nominee Goodwin Liu writes in a new letter to the Senate Judiciary Committee that he mistakenly omitted scores of materials from a background questionnaire, and he apologized to senators for not being complete in his initial response.

The letter, dated Monday, is rare for a nominee both in the scope of its disclosure and in its offer of a personal apology. Liu, nominated for the U.S. Court of Appeals for the 9th Circuit, also detailed for senators the database searches he used to answer the questionnaire.

Republicans reacted to the omissions today with outrage, requesting that the committee’s chairman, Sen. Patrick Leahy (D-Vt.), delay a planned April 16 hearing on Liu’s nomination. Last month, they criticized Attorney General Eric Holder Jr. for omitting materials during his confirmation process.

Monday’s letter (PDF, Page 84) is the fourth time Liu has supplemented his nomination materials since he initially submitted them in late February. In the latest correspondence, he writes that he missed some public appearances that he should have known about initially and that he did not think to include appearances at such occasions as brown bag lunches and alumni gatherings.

“In preparing my original submission, I made a good faith effort to track down all of my publications and speeches over the years. I checked my personal calendar, I performed a variety of electronic searches, and I searched my memory to produce the original list. But I have since realized that those efforts were not sufficient,” Liu writes.

Big Law Defends Guantanamo Lawyers

By Mike Scarcella and David Ingram

The intensifying flap over Justice Department lawyers who have advocated for Guantanamo Bay detainees is spilling over to Big Law, where some firm leaders are fighting back against the criticism.

The Justice Department in the past couple of weeks has come under fire from a conservative group and Republican lawmakers for hiring lawyers who represented Guantanamo Bay detainees while in private practice. The controversy ramped up after the Justice Department refused to name the lawyers. Then the conservative Keep America Safe posted a YouTube video questioning the allegiance of the DOJ lawyers and giving the attorneys a name—“The Al Qaeda Seven.”

The political talk shows are buzzing about ethics and loyalty. Lawyers are writing opinion pieces. One Virginia congressman fired off a letter to Attorney General Eric Holder Jr. that compared Gitmo lawyers to attorneys for the mafia. And in the middle of it all are a group of former private practitioners in Big Law at firms that include Wilmer Cutler Pickering Hale and Dorr, Morrison & Foerster, O’Melveny & Myers and Sidley Austin.

“From the perspective of our firm, providing representation for unpopular causes is a long and noble tradition in the law, and that kind of criticism is not going to affect our firm’s commitment to that cause,” said Brian Brooks, managing partner of O’Melveny & Myers’ Washington office. “If the private bar doesn’t step up and show that kind of courage, then I think our whole system of justice is in question.”

Brooks, who describes himself as a conservative, said, “There’s a consensus from left to right that law and justice need to be insulated from politics.” Karl Thompson, who was a counsel with O’Melveny, was part of the team that defended Omar Khadr, the Canadian citizen who was 15 years old when he was transferred to Guantanamo in 2002.

The D.C. managing partner of Sidley Austin, Carter Phillips, said he feels "horrible" that a former partner, Joseph Guerra, who is now principal deputy associate attorney general, is taking heat for his participation on a U.S. Supreme Court brief in a detainee case. (Phillips, a former assistant solicitor general in the Reagan administration, was also on the brief.)

“I always think it is an outrage when people attack the lawyers for whom they represent,” Phillips said. “To me it’s unfortunate that we’re talking about wonderful talent, relatively young lawyers who ... are now being pilloried for something that they ought to have been cheered for.”

Whether or not the cause is popular, Phillips said, "it’s our responsibility to make sure that every side in a litigated matter is adequately represented. If that means personal sacrifice of one sort or another, that’s the price you pay.”

Appeals Court Warm to Comcast in Fight Against FCC

It was the hottest ticket in town, a hearing in the high-profile fight about Internet network regulation between media giant Comcast Corp. and the Federal Communications Commission. The FCC had a seat at the front table. But for this show, the FCC perhaps wishes it had been in the back.

A three-judge panel of the U.S. Court of Appeals for the D.C. Circuit didn’t seem keen on letting stand an FCC finding that Comcast violated “federal internet policy” in interfering with use for certain subscribers. Those consumers were using peer-to-peer software to exchange, among other things, bandwidth-heavy video. Comcast has since abandoned the network management practice that was subject to a complaint at the FCC. The commission did not fine Comcast.

Wiley Rein partner Helgi Walker, representing Comcast, argued today that the FCC was outside its bounds when it crafted and enforced a policy statement—“basically a piece of paper,” Walker called it—against Comcast. That statement, Walker argued, isn’t enforceable. The FCC is now in the rule-making process, a move that began after the August 2008 order was lodged against Comcast. Walker said Comcast has suffered, among other things, harm to its reputation.

The appellate panel—Chief Judge David Sentelle was sitting with Judge David Tatel and Senior Judge A. Raymond Randolph—pressed FCC General Counsel Austin Schlick to back up the FCC’s position that it has the authority to enforce the policy.

Randolph commented that the FCC’s position in the case is “antiquated”—that the FCC is acting on its own without statutory authority from Congress. “What independent authority did the commission have to regulate the Internet?” Randolph asked. Tatel questioned the limits of the FCC policy enforcement—whether the FCC could regulate the volume of e-mail any one subscriber sends and receives.

Supporting Comcast, Howard Symons, chair of the communications practice at Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, argued for intervenors who included NBC Universal and the National Cable & Telecommunications Association. Symons said the order subjects the entire industry to “vague” standards and provides no guidance on determining permitted conduct.

Backing the FCC in the litigation were consumer groups that included Free Press, Consumer Federation of America and the Open Internet Coalition. Free Press General Counsel Marvin Ammori argued for the intervenors who are supporting the FCC.

It’s rarely hard to get a seat for argument at the D.C. Circuit. Today’s case drew a crowd of more than 125 people. Some spectators lined the back wall of the courtroom. With all the talk of technology, no recording devices—video and audio—were not allowed in the courtroom.

A court staffer jokingly said “see you all in a couple of years” as the court observers left and grabbed their coats after the hearing.

Legal Times Awards Gala Photos Now on Flickr

If you were at the second annual Legal Times Awards Gala at the Ritz Carlton on Tuesday, chances are National Law Journal Photo Editor Diego M. Radzinschi snapped a picture of you at some point in the evening. Have a look at our just-created Flickr page to find your photo. If you weren't there, click the link to see what you missed. 

And just in case you did miss it, here's a recent BLT post about the event. See you next year.

Race Issues at Covington's Washington Office?

Covington & Burling is taking some heat over at The Huffington Post.

Yolanda Young, a former staff attorney, published a blog item Monday that compared the firm’s efforts at diversifying its workforce with segregation laws in the Jim Crow South.

“Covington has certainly diversified its firm; however, its attorneys are far from equals,” she writes. “The vast majority of Covington's black attorneys do no substantive work, have no control over their case assignments and no opportunity for advancement.”

She contends that black lawyers make up less than 5 percent of partners and associates in the firm’s Washington office, but compose nearly one-third of the staff attorneys despite their experience and education.

Covington’s management committee released a statement to Legal Times, which said the firm may have had less success in terms of the percentage of black lawyers as partners, counsel, and associates. But it’s not for a lack of trying.

“[R]oughly 10% of the lawyers we hired during the past two years are African-American,” the statement says. “Over time, we are hopeful that these percentages or higher percentages will be reflected in our overall numbers.”

The statement also says Young’s blog was “replete with distortions and inaccuracies” and that she misrepresented the firm's ongoing commitment to diversity and “the advancement of black lawyers in a wide range of practice areas and positions of firm leadership.”

Harry Potter and the Order of the IP Attorneys

From broken embargoes on book release dates to academic papers on the legal principles of magic (just say "estoppel!"), the Harry Potter books have intersected with the law more than one might think. The most recent bit of legal wizardry has been author J.K. Rowling’s lawsuit to stop a Harry Potter fan site’s proprietor from publishing a lexicon of the books’ characters, places and potions, and over at Salon.com's Machinist blog, Farhad Manjoo goes into some of the legal and moral quandaries wrapped up in the suit.

The first thing to note: Rowling's suit has, at least temporarily, worked. Plans to publish the Harry Potter Lexicon, compiled by Steve Vander Ark, have been shelved pending judicial review.

Manjoo notes that Rowling’s attorneys have significant copyright precedent in their favor, including a ruling that found that “The Seinfeld Aptitude Test,” a book of show-related trivia, infringed upon Castle Rock Entertainment’s copyrights for the sitcom. Detracting from her case, however, is the writer’s prior statements of affection for the online version of the Harry Potter Lexicon. (In one blog post, Rowling even mentions how she has used it to settle factual matters about the characters from time to time.)

The issue of fan-created works is, of course, very contentious. See this recent dispatch by a Wired Magazine writer from a Tokyo manga mega-market that sells both leading comics and fan-created knock offs, a genre that in Japan receives tacit approval.

Weblog Awards Recognize ALM Blog

The finalists for the yearly Weblog Awards have come out, and nominees for Best Law Blog include the ALM blog How Appealing.

According to the site, the Weblog Awards attracted a half a million votes last year in categories such as Best Online Community, Best Comic Strip (for what it's worth, I voted for XKCD), and Best Celebrity Blogger, among a host of others. Voting closes November 8. The winners will be announced live at the BlogWorld & New Media Expo in Las Vegas.