The BLT: The Blog of Legal Times

A Thanksgiving Vacation

Unless big legal news breaks, the Blog of Legal Times will be taking a few days off. Enjoy your turkey -- and tune back in Monday for the latest law and lobbying news from the nation's capital.

"I Called Mukasey a Tyrant," Admits Justice Richard Sanders

A Washington-state Supreme Court judge has outed himself as the man who called Attorney General Michael Mukasey a “tyrant” during the Nov. 20 speech at the Federalist Society dinner, where Mukasey later collapsed.

In a statement to the Wall Street Journal Law Blog, Justice Richard Sanders says he felt compelled to “speak out" as a matter of conscience after the Attorney General defended the Bush administration’s record on Guantanamo Bay and the Geneva Conventions.

He says he was prompted to act after the audience's amusement over Mukasey’s comments that Al Qaeda is “not, the last time I checked” a signatory to the Geneva accords. “Although the United States is a signatory, and these Conventions prohibit torture, the audience laughed. Attorney General Mukasey received a standing ovation,” says Sanders. “The program provided no opportunity for questions or response, and I felt compelled to speak out."

Justice Sanders says he “passionately disagrees” with Mukasey’s views. “I hope those who know my jurisprudence will agree that to truly love the Constitution is to uphold it, to speak out for it, not just in times of peace and prosperity, but also in times of chaos and crisis,” he said.

The judge denies he “heckled” the Attorney General or disrupted the meeting. He left the dinner immediately after making his comments and says he wasn’t aware of Mukasey’s collapse, which occurred about 15 minutes later, until the following day.

It's not clear if Mukasey heard the judge's comments, which occurred about 17 minutes into the speech. The Journal notes that Mukasey briefly glanced in Justice Sanders' direction and then resumed speaking. There is no suggestion the disruption was related to the Attorney General's later collapse.

It remains to be seen whether there will be any official fallout from the judge's outburst. Justice Sanders told the Seattle Times he was exercising his right of free speech and does not believe he breached Washington's Code of Judicial Conduct, which states that a judge's public activities should "not detract from the dignity of their office."

Justice Sanders ends his statement by offering his wishes that the Attorney General, “despite our vastly different views on what constitutes upholding the rule of law," continues his recovery and remains in good health.

Another Vacancy Opens Up on D.C. Superior Court

The Judicial Nomination Commission didn’t get much of a break.

Just one week ago, the commission announced that it had selected three candidates to send to President George W. Bush to fill a vacancy on D.C. Superior Court. This morning, the commission issued another announcement saying that the court has another opening to fill.

After Judge Linda Turner’s retirement takes effect on Dec. 5, the commission will have 60 days to submit the names of three candidates for the spot.

Turner, who was appointed to the bench in 1990 by President George H. W. Bush, is a former assistant U.S. attorney. In October 1989, she was promoted to the position of Deputy Chief of the Superior Court Division.

Turner presided over the 1999 trial of Elwyn Lehman, the tour bus driver for gospel singer CeCe Winans who was arrested after inadvertently bringing a handgun onto White House grounds. After a three-day trial, Turner found Lehman not guilty on three misdemeanor charges associated with the gun incident. 

Turner chaired the domestic violence rules advisory committee and the committee on selection and tenure of magistrate judges.

The Commission invites qualified applicants to submit their names for consideration. Applicants must be citizens of the United States, active members of the District of Columbia Bar, residents of the District of Columbia, and, for the five-year period immediately preceding the nomination, must be engaged in the active practice of law in the District of Columbia, on the faculty of a law school in the District of Columbia, or employed as an attorney by the United States or the District of Columbia government. 

The Defense Calls to the Stand ... a Prosecutor?

What a showdown! But will it happen? Williams & Connolly partner Brendan Sullivan Jr., lead counsel for Alaska Sen. Ted Stevens (pictured on the left), is arguing for a chance to question government prosecutors and federal agents under oath about their interaction with a witness who claims the government induced him to lie on the stand.

The witness, Alaska resident David A. Anderson, who worked on the Stevens home in Alaska, claimed in a letter to U.S. District Judge Emmet Sullivan this month that he would have testified differently at the Stevens trial had it not been for what he suggested was government manipulation of his memory.

Anderson showed an “unusually detailed recollection” of the renovation work done at the Stevens home, Brendan Sullivan wrote in a brief seeking an evidentiary hearing. Sullivan has scheduled a status conference—a “brief hearing,” according to an order—for Monday at 10:30 a.m. It wasn’t immediately known whether Stevens—who lost his re-election bid—will take a seat in court.

Prepping witnesses for trial—reviewing transcripts and evidence—is common. But Anderson claims the government went overboard—putting him alone in a room with documents he was told not to read. “Of course I read it all,” he said in his letter to Judge Sullivan. Anderson even said he called a friend to recount grand jury transcripts that he’d read. The Anderson letter was unsolicited, Brendan Sullivan (pictured below) said in court papers.

Anderson wrote in the letter—in which he talks about an immunity agreement he made with the prosecution—that he is not represented by counsel. Anderson claimed he agreed to cooperate in exchange that family members would not be prosecuted. On the stand, he disavowed that agreement.

“Before I took the witness stand that day I had the understanding that the agreement would be honored or I would never have testified,” Anderson wrote in the typed letter dated Nov. 15. “I would have pleaded the Fifth.” Anderson said in the letter: “Without a shadow of a doubt I believe this trial would have gone much differently.”

Lead Justice Department prosecutor Brenda Morris, principal deputy chief of the Public Integrity Section, calls Anderson’s letter false. There was never any immunity given to Anderson and his family members, Morris wrote in a brief.

Prosecutors say they have “substantial” evidence—including documents and video surveillance—that proves Anderson is not only lying but also colluded with “an interested party in the preparation and transmission” of the letter. Morris said last week the government would describe and submit that evidence this week. No additional evidence, however, has been provided in the public record.

Morning Wrap

Thelen Gets Sued, Again: Three Thelen associates and a staff member filed suit against the firm, seeking damages for lost wages under the federal WARN Act, according to The Recorder, via Law.com. The complaint alleges that Thelen, which will close its doors Monday, violated the WARN Act by not giving 60 days' notice prior to a mass layoff, failing to pay wages for 60 days following the layoff notice, and failing to pay for accrued vacation. This is at least the second potential class action filed in the past two weeks against the firm.

GM Has Another Option: General Motors has reportedly reviewed and ruled out the option of a traditional Chapter 11 filing. According to The American Lawyer, via Law.com, the automakers could consider the option of a “prepack,” - when debtor's counsel negotiate agreements with creditors prior to an actual filing for Chapter 11 protection.

Bayer Settles With Justice: The Associated Press, via Law.com, reports Bayer, a German medical conglomerate, will pay $97.5 million in a settlement with the Justice Department over allegations that it paid kickbacks to medical suppliers to increase sales of the company’s diabetes products. Bayer Healthcare makes electronic monitors and testing strips used to measure blood sugar levels.

Gates to Stay at Pentagon: It looks like President-elect Barack Obama will retain at least one member of President Bush’s Cabinet. The Washington Post reports Defense Secretary Robert Gates is close to an agreement to remain at the Pentagon for at least the first year of Barack Obama's presidency. Obama has said he expects to have at least one Republican in his Cabinet.

Defense Lawyer Chides Prosecution Tactics in Wone Investigation

UPDATE (3 p.m.): Here's a copy of Schertler & Onorato's motion seeking pretrial release for Dylan Ward. Judge Weisberg reviewed the motion and granted it today.

Government prosecutors reportedly met with Arent Fox partner Joseph Price, Victor Zaborsky, and their lawyers to announce that Price and Zaborsky would be arrested on an obstruction charge if they did not cooperate with the government in the murder investigation of Robert Wone, according to defense counsel representing co-defendant Dylan Ward.

Ward’s lawyer, David Schertler of Schertler & Onorato, provided new details in court papers that reveal prosecution tactics designed to squeeze information from Price, Zaborsky, and Ward. Schertler, law firm partner Daniel Onorato, and Ward were in D.C. Superior Court court today for arraignment. Ward, 38, who was arrested in Miami last month and has been held in custody ever since, pleaded not guilty. Schertler, on the left below, and Onorato, are leaving Superior Court.

D.C. Superior Court Judge Frederick Weisberg questioned why government prosecutors did not allow Ward to surrender voluntarily in the same manner as co-defendants Price and Zaborsky. Price, Zaborsky, and Ward were all freed on the condition they submit to electronic monitoring, a 10 p.m. to 6 a.m. curfew, and weekly drug-testing. Price and Zaborsky, who are domestic partners, pleaded not guilty last week.

Assistant U.S. Attorney Glenn Kirschner, who is prosecuting the case with AUSA Patrick Martin said today in court that the government was concerned Ward would try to flee had he been allowed to surrender on his own. Ward, Price, and Zaborsky “stonewalled” the investigation during the past two years with “misdirection” in an attempt to avoid prosecution, said Kirschner (on the left, below, with Martin). He did not offer details.

“The government was not at all confident … that we would ever see Mr. Ward again,” said Kirschner, chief of the homicide division. Ward was arrested in near Miami—at the home of Price and Zaborsky—and extradited to the District this week. Weisberg called Ward’s detention “excessive” but did not elaborate.

Schertler called Kirschner’s comments “conclusory and vague” and declared that Ward never had any intention to flee. Keeping Ward locked up in Florida was an “improper and obvious” attempt to pressure him to incriminate Price and Zaborsky, Schertler wrote in court papers. “We believe with equal vigor and equal conviction that these three men did nothing wrong,” Schertler said in court.

Schertler and Kirschner squared off in court today over the extent to which Ward has cooperated in the Wone investigation. Schertler noted that Ward, Price, and Zaborsky voluntarily gave hair, DNA, and fingerprint samples without a subpoena. The three men individually without counsel gave a statement to police the night of the homicide. Police made derogatory comments about the men based on their sexual orientation, Schertler said in court. But Kirschner said it is “folly” to suggest Ward has helped the prosecution.

D.C. police caused “hundreds of thousands of dollars of damage” to Price and Zaborsky’s Swann Street home, where Wone, a former Covington & Burling associate, was killed in August 2006, Schertler said in court papers. Ward was living with Zaborsky and Price at the time of the homicide, and Ward is expected to move in with Price and Zaborsky at an apartment in the 1600 block of 16th Street N.W. Kirschner did not object to the arrangement.

Ward is a 1992 graduate of Georgetown University and has a master’s in children literature from Simmons College in Boston. He is licensed to practice massage therapy in the District. Last year, Ward traveled to Thailand for six weeks to complete a Thai massage program, according to court records. Schertler said the government knew his client was out of the country. Price, Zaborsky, and Ward have surrendered their passports.

The grand jury investigation of the Wone murder continues and a superceding indictment for conspiracy is expected, Kirschner said today. When Weisberg asked him for details on the conspiracy charge, Kirschner said he could not talk about it. Lawyers for Price, Zaborsky, and Ward are expected to seek less-restrictive conditions of pre-trial release—arguing that the electronic monitoring and the curfew are onerous and unwarranted.

Wone Family Files $20 Million Wrongful Death Suit

The family of lawyer Robert Wone filed a $20 million wrongful death suit against three men who were indicted last week for allegedly obstructing the investigation into his death.

The complaint, filed today in D.C. Superior Court, accuses Arent Fox Partner Joe Price, 37, his partner Victor Zaborsky, 42, and their roommate Dylan Ward, 38 of conspiring to thwart the investigation and of “intentional, reckless and/or negligent acts” that caused Wone’s death.

Wone, a lawyer with Radio Free Asia, was stabbed to death in the second-floor guestroom of Price’s Dupont Circle home in 2006. A friend of Price's from college, Wone had arranged to stay the night rather than commute home to Oakton, Va., because he was working late.

Wone had recently left Covington & Burling at the time of his death. Partner Benjamin Razi is representing Wone’s widow, Kathy, in the lawsuit. Covington’s Eric Holder Jr., reportedly President-elect Barack Obama’s nominee for attorney general, has also been involved in the case, though his name was not on the complaint.

“The civil suit filed today is another step in the effort to seek justice for Robert,” Razi said in a statement. “This effort will not end until all persons responsible for his murder and the cover-up of his murder are held to account."

The roommates have told police they believe an intruder attacked Wone. Police say there is evidence that Wone was drugged and sexually assaulted, which they say is inconsistent with the intruder theory. Nothing was taken from the house and there were no signs of forced entry.

The complaint relies heavily on an affidavit made public last month after Ward was arrested in Miami-Dade County, Fla., on obstruction charges. The affidavit alleges that the men obstructed the homicide investigation by "altering and orchestrating the crime scene, planting evidence, delaying the reporting of the murder to the authorities, and lying to the police about the true circumstances of the murder."

Price, Ward, and Zaborsky, were indicted last Thursday. Ward was arraigned this morning in D.C. Superior Court. Price and Zaborsky turned themselves in last week. Superior Judge Frederick Weisberg has ordered them to wear electronic ankle bracelets, submit to weekly drug tests, and abide by a curfew as conditions of their pre-trial release.

K&L Gates Brings on Consumer Product Safety Partner

(UPDATE: 4:07 p.m.)

With K&L Gates, Stone will face restrictions about working directly with the Consumer Products Safety Commission. He told Legal Times that he is not allowed to work on anything that he was "substantially involved with" at the agency. Stone added that while there is a one-year restriction from working directly with the CPSC that does not apply to him because he was a senior official, there is, however, a two-year restriction that prevents him from working on matters that were pending under his authority – even if he was not directly involved. Stone is permitted to provide advice to clients on all matters.

-Brian Katkin

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K&L Gates has brought on a new government enforcement partner in its Washington office.

Eric Stone joins the firm from the Consumer Product Safety Commission, where he worked for more than 30 years. Since 1993, he served as director of the legal division of the commission’s compliance and field operations office. In that role, Stone oversaw the recalls of tens of millions of products, including toys and other children’s items.

In a press release, K&L Gates chairman Peter Kalis said his firm anticipates “an even greater role for the CPSC in the regulation both of international commerce flowing into the U.S. and of domestically manufactured products” in the wake of recent recalls arising from the mass distribution of allegedly harmful products. He said he expects that Stone’s arrival will be valuable to clients potentially affected by those recalls.

Ward Ordered Released

The last of three men charged with obstructing the investigation into the slaying of lawyer Robert Wone was arraigned this morning in D.C. Superior Court.

Superior Judge Frederick Weisberg ordered Dylan Ward, 38, to wear an electronic ankle bracelet and submit to weekly drug tests as a condition of his pre-trial release. Ward was arrested late last month in Miami-Dade County, Fla., and recently transferred to the District. Last week, Weisberg ordered similar conditions for Arent Fox partner Joe Price and his partner Victor Zaborsky, who are also charged in connection with the Wone investigation.

Click here for our story from this week's issue.

Wone, who was general counsel at Radio Free Asia, was stabbed to death in Price and Zaborsky’s home on Swann Street, N.W., in 2006. Ward was also living there at the time. The night of his death, Wone was working late and planned to stay in the District instead of commuting to his Oakton, Va., home. He and Price were old college friends.

Ward, who is represented by David Schertler of Schertler & Onorato, is staying with Price and Zaborsky at their house on the 1600 block of 16th Street N.W. The men sold the Swann Street home.

Morning Wrap

Laterals Want to Know Firm Finances: With the recent dissolutions of Heller Ehrman and Thelen, lateral partner candidates are asking more questions up front about the finances of the firms they are considering, according to The Recorder, via Law.com. One former Heller partner estimated that he and several other Heller partners will lose between $400,000 and $500,000 because of the firm’s dissolution.

Bin Laden's Former Driver Sent to Yemen: Osama bin Laden’s former driver has been transferred from custody at Guantanamo Bay to a prison in Yemen. The Washington Post reports Salim Ahmed Hamdan will spend the next month in a Yemeni prison until his military commission expires on Dec. 7. The Bush administration felt Hamdan was a dangerous terrorist, but a military jury believed he was a low-level aide.

SEC Gets Tough: The U.S. Securities and Exchange Commission expects to issue larger penalties than in the past on a number of companies that have allegedly violated the Foreign Corrupt Practices Act, according to The National Law Journal. Lawyers in the field say the more frequent and larger cases are driven partly by the globalization of business, but also by the stronger enforcement power that the SEC and the U.S. Justice Department have achieved through increased cooperation from other countries.

Now Hiring: As the Bush administration nears its end and businesses cut their lobbying budgets, Republican lobbyists are having a tough time finding work. The New York Times reports Democrats are in high-demand from companies and interest groups. The fact so many well-connected Democrats are vying for jobs in the Obama administration, is only adding to Democratic lobbyists' value.