The BLT: The Blog of Legal Times

Judge Eases Pretrial Release Conditions in Wone Case

Prosecutors this week got a reprieve in the Robert Wone case when a D.C. Superior Court judge granted more time to respond to a defense motion demanding greater detail about the indictment against Joseph Price, Dylan Ward, and Victor Zaborsky.

Lawyers for the three defendants filed motions demanding more information about the case, which alleges conspiracy, evidence tampering, and obstruction of justice. The lawyers call the indictment vague.

According to police, D.C. lawyer Wone was restrained, incapacitated, sexually assaulted, and fatally stabbed in August 2006 in the Swann Street townhouse where the three defendants lived.

Prosecutors failed to respond to the defense motion for a bill of particulars in time—the deadline was March 13—and asked Superior Court Judge Frederick Weisberg for an extension after the fact. Weisberg granted the request, according to court papers released this week. The prosecution asked for an extension until April 17.

Weisberg also granted a defense request to modify pretrial release conditions. Price, an Arent Fox partner, Ward, and Zaborsky no longer have to submit to weekly drug testing. All three are free on their own recognizance. Other pretrial conditions—including electronic monitoring—were removed at hearing in December.

Their lawyers, Bernard Grimm, David Schertler, and Thomas Connolly, respectively, argued in court papers that since their clients had repeatedly tested negative for drugs since their arrests last year, there was no need to continue the drug testing.

Weisberg has set a status conference for April 24. One of the big issues in the case now is whether prosecutors are holding back evidence from the defense. The lawyers recently filed motions to compel discovery.

Groups Ask White House to Revise Anti-Lobbyist Rule

Lobbyists aren’t the only ones feeling offended by President Barack Obama’s stringent restrictions on communications between K Street and the executive branch about stimulus projects.

Today, the American Civil Liberties Union and the Citizens for Responsibility and Ethics in Washington partnered with the American League of Lobbyists to send a letter to White House Counsel Gregory Craig. It requests that Obama rescind a directive issued March 20 to all federal agency heads that bars them from having in-person or telephone conversations with registered lobbyists about particular projects, applications, or applicants for funding under the American Recovery and Reinvestment Act. The rule only allows registered lobbyists to submit written communications on these matters.
 
Obama issued the directive as part of a broader memorandum to executive departments and agencies that he said was meant to ensure that funds under the Recovery Act are spent responsibly and transparently.
 
The letter to Craig, however, calls the directive on lobbyist communications “an ill-advised restriction on speech,” and claims it is “not narrowly tailored to achieve the intended purpose.” The letter’s authors—Melanie Sloan, executive director of CREW, Caroline Fredrickson, director of the ACLU’s Washington legislative office, and Dave Wenhold, president of ALL—stress that the ban does not apply to special interest representatives, such as bank vice presidents and corporate directors, who are not registered under the Lobbying Disclosure Act. 

And while the permitted written communications submitted by registered lobbyists must be publicly disclosed, any correspondence—whether oral or written—from non-registered special interests can happen without the public’s knowledge. During a conference call with reporters this afternoon, Sloan said that loophole will simply turn non-registered special interests into “de facto lobbyists” who are not subject to regulations or penalties for misconduct.  
 
The White House special counsel on ethics and government reform, Norm Eisen, founded CREW, and is a major player in developing Obama’s ethics policies, including the March 20 directive. During the conference call, Sloan said she was surprised her former colleague would have created “proposals that I think aren’t well thought out.”
 
The full letter to Craig is available here. 

Weapons Maker Sues Air Force Over Release of Pricing Data

It’s not often that anyone accuses the Pentagon of sharing too much information. Yet that’s what one major weapons maker did last week, when it filed a suit trying to stop the Air Force from releasing its pricing data to a competitor.

In a complaint filed Friday at the U.S. District Court for the District of Columbia, Northrop Grumman, the maker of such military staples as the F-14 fighter jet and B-2 stealth bomber, asked Judge Ricardo Urbina to stop the Air Force from honoring a Freedom of Information Act request by Lockheed Martin, which it says would reveal private business information.

In October, Lockheed sent a letter to the Air Force asking it to provide all contract and delivery information related to its purchase of a weapons aiming system built by Northrop. Lockheed, of course, happens to build a competing product. Northrop objected to the release, arguing the documents contained technical and pricing information that amounted to trade secrets.

The Air Force, however, has written off those qualms, giving Northrop 10 days to get a court order stopping them from releasing the records. The company is being represented by Donald Russelland Richard Sauber of Robbins, Russell, Englert, Orseck, Untereiner & Sauber.

Releasing its contract information would let Lockheed undercut it on bidding, Northrop contends. The company says that more than $120 million in sales of the aiming system, known as the Litening Targeting Pod System, would be threatened.

It also says that release of design details would “allow competitors to gain unfair insight into Northrop Grumman’s competitive strategy and to improperly leverage this information when submitting their own bids.

Most FOIA requests the Air Force receives are from private companies looking for information on their competitors, says Air Force spokesman Captain Tom Wenz. Generally, he says, the department will release publicly available information, as well as full contract rates. But specific line items, such as unit prices and labor costs,are left off.

Wenz had no comment about Northrop's case, nor about how often such suits occur.

UPDATE: 3:51 p.m.

Mixed-Up Names and Mixed Motives at the Supreme Court

The case of Gross v. FBL Financial Services, argued this morning at the Supreme Court, is complex enough to make anyone's head spin -- including the head of Carter Phillips, Sidley Austin's Supreme Court veteran, one of the best in that small universe of skilled advocates. During an intense half-hour at the lectern, Phillips managed to address Justice Stephen Breyer as "Justice Ginsburg," not long after he had attributed an opinion of retired Justice Sandra Day O'Connor to... Justice Ginsburg. 

That mix-up between the female justices was especially awkward since Phillips was addressing Ginsburg at the time. When Ginsburg politely pointed out the error, Phillips said, "Did I say 'Ginsburg'? I'm gonna hear about this one. I apologize." So, even though O'Connor has been off the court for more than three years, the odd propensity of lawyers -- veterans and novices alike -- to mix her up with Ginsburg continues.

The case involves a "mixed-motive" age discrimination claim. That's one in which the employee claims an adverse job action -- here a demotion -- was taken because of his age, but the employer says that the action was taken for other, permissible reasons. The justices wrestled with how much evidence the plaintiff needs to present, and what kind. The words direct, significant, circumstantial, and strong were all tossed around. Also confounding the Court was whether the evidence has to show that age was only one factor, a motivating factor, or was a "but for" factor -- the action would not have happened but for the plaintiff's age. 

It was getting so layered and complex that at one point, Justice David Souter suggested ditching all the standards and burden-shifting and leaving it up to sensible jurors. "Juries are smarter than judges," Souter announced, a statement that is sure to reverberate for years to come.

The case seemed also to catch Phillips' adversary, Eric Schnapper, off-stride as well. Schnapper, the able University of Washington law professor who has argued many key employment discrimination cases on behalf of employees, appeared at a loss for for words when Chief Justice John Roberts Jr. asked him a seemingly straightforward question: What is the meaning of the phrase "direct evidence," which the lower court said the plaintiff had to present in order to shift the burden to the employer? Schnapper recovered, but seemed on the defensive more than usual.  

The only advocate this morning who seemed in top form was Lisa Blatt, assistant to the solicitor general, who argued as amicus curiae on the side of the employee, with direct, no-nonsense answers that contained a minimum of equivocation. More on today's Supreme Court action later at legaltimes.com.

Federal Appeals Court Rules For Cessna in Crash Suit

A federal appeals court has dismissed the bulk of a $100 million tort suit against Cessna Aircraft Co., represented by Gibson, Dunn & Crutcher, on the ground that Italian courts have jurisdiction.

Gibson, Dunn partner Miguel Estrada, co-chair of the firm's appellate and constitutional law practice group, argued for Cessna in the U.S. Court of Appeals for the 11th Circuit, which ruled per curiam on Friday to uphold dismissal of 69 of 70 plaintiffs. The panel judges were Joel Dubina, Susan Black, and Peter Fay. “This was a challenging and satisfying case where the courts reached the legally correct result,” Estrada says in an e-mail to Legal Times.

The complaint, brought by families of the victims of an airplane crash in Milan, Italy, in 2001, was filed March 2003 in federal district court in Miami. The one plaintiff left in the U.S. case is the family of the single U.S. citizen killed in the crash between the private Cessna plane and a Scandanavian Airlines jet. The Cessna and the jet collided on a runway.

On the district level, the trial judge held a two-day hearing to determine the applicability of Italian law. Estrada says it was his first experience learning Italian law—a bit “more fun,” he says, than learning Kazakh law for an unrelated case.

In ordering that Cessna submit to jurisdiction in Italy for the 69 European victims, the 11th Circuit found Italian courts have addressed similar cases and Italian law provides the plaintiffs with remedies comparable to those available under U.S. law. The court also noted that most of the evidence in the case is in Italy.

“Echoing the district judge’s sentiments, we are extremely sympathetic to those affected by this tragic airplane crash,” the appeals court wrote. “Still, our sympathy for the victims and their families cannot alter our conclusion” that the district court did not abuse its discretion in dismissing the European plaintiffs’ complaint.

Joel Eaton, a partner with Podhurst Orseck in Miami, which represents the family of the U.S. citizen killed in the crash, says the firm is considering its options. Eaton says the case is not over.

Office of Legal Counsel Nominee Still Awaiting Vote

Dawn Johnsen, nominated to be assistant attorney general in charge of the Office of Legal Counsel, may have to wait at least another three weeks for a vote in the Senate.

Votes related to the federal budget are occupying most of the Senate’s time this week, and the office of Senate Majority Leader Harry Reid (D-Nev.) says that it has not reached an agreement with Senate Republicans for a time to debate Johnsen’s nomination. Democrats hope to reach an agreement on the timing in order to avoid the lengthy procedures involved if Reid has to move to cut off debate on the floor.

The Senate is scheduled to begin its two-week Easter recess at the end of the week, pushing a confirmation vote to the week of April 20 at the earliest.

President Barack Obama announced his choice of Johnsen Jan. 5, the same day he announced three other nominees for top Justice Department spots. The Senate has confirmed the three others.

The Office of Legal Counsel provides legal and constitutional advice to the executive branch, and it has been at the center of debates over the legality of waterboarding and other anti-terrorism tactics. Johnsen, who led the office for a year during the Clinton administration, was a harsh critic of the office’s work under President George W. Bush.

A sharply divided Senate Judiciary Committee endorsed her nomination March 19 on a party-line vote. The only exception was Sen. Arlen Specter (R-Pa.), the committee’s ranking Republican, who voted “pass” because he said he needed more time. Specter has said he plans to meet again with Johnsen before the Senate votes, but two sources say the meeting has not occurred yet.

Sen. John Cornyn (R-Texas), citing Johnsen’s criticisms of Bush national security policies, accused her of lacking “the seriousness and necessary resolve” to fight terrorism, and other Republicans have targeted her work as legal director for NARAL Pro-Choice America from 1988 to 1993. Democrats say her record is being distorted and that she’s more than qualified for the job, having worked there in the 1990s and co-written a widely circulated paper in 2004 outlining principles for the office to follow.

The Morning Wrap

Bankrupt: The Obama administration is floating the possibility of putting General Motors and Chrysler through a guided bankruptcy. The Wall Street Journal says the plan has the potential to be “one of the biggest-ever government incursions into private enterprise.”

Executive Panic: In the wake of Richard Wagoner’s weekend ouster from GM, banking executives are anxious that they could be next out the door, the Washington Post reports. Prime candidates for a push off include Citigroup's Vikram Pandit and Bank of America's Ken Lewis.

PMA: Democratic leaders are worrying about the growing calls from within their own party for an investigation into the PMA Group’s activities on Capitol Hill. So far just eight Dems have backed a resolution by Rep. Jeff Flake (R-Ariz.) demanding an inquiry. But some wonder if that trickle of support could soon turn into a flood, Politico finds.

Big Law Blues: The top dogs in big law aren’t feeling too optimistic about their business prospects these days, according to Citi Private Bank Law Watch’s most recent managing partner confidence index. Of the roughly 120 managing partners surveyed from mostly Am Law 100 and Am Law 200 firms, 64 percent believe legal business will drop even more over the next six months, reports Legal Times’ Brian Katkin.

Chopped: A jury in Georgia awarded $2.3 million in damages to the four-year-old victim of a botched circumcision and his mother, according to the Fulton County Daily Report. Defense lawyers allegedly tried to strike as many men as possible from the jury, which apparently suit plaintiffs’ attorney Craig T. Jones just fine. "The strategy of the defense side was that men would be more sensitive to a penis injury. My experience has been that men aren't as sensitive about anything," Jones said. "I figured if you have one man on the jury, he can explain to the women -- if they don't know -- how important a penis is to a man's self-image."

DOJ Task Force Clears Another Detainee for Transfer

A Justice Department task force has approved the transfer of a Yemeni doctor who has been held captive at the Guantanamo Bay prison facility for nearly seven years.

Ayman Saeed Batarfi, who was sent to Guantanamo in the spring of 2002, is the second prisoner to be cleared by the task force, which is reviewing the case files of the roughly 240 men still held there. Binyam Mohamed, the first, was transferred to the United Kingdom in late February. (His case has generated considerable controversy. Last week, two British High Court judges revealed that U.S. military prosecutors pressured Mohamed to plead guilty to unspecified charges and to sign a statement saying that he hadn't been tortured and wouldn't sue the U.S. government or its allies over his treatment in captivity.)

In a joint motion filed today in U.S. District Court for the District of Columbia, the Justice Department and Batarfi’s lawyers asked a federal judge to stay his habeas case while the government searches for a “destination country in a manner that is consistent with the national security and foreign policy interests of the United States and the interests of justice.”

One of Batarfi’s lawyers, William Murphy of Baltimore’s Murphy & Shaffer, cautioned that the task force’s finding did not mean Batarfi would be immediately released upon resettlement, but he said, “We are pleased by the result of the review.”

The motion stipulates that Batarfi may reopen his case if he is “not promptly repatriated to an acceptable country” or if he is transferred to a country that would impose “unacceptable conditions.” Murphy, who has been representing Batarfi since 2005, said he learned of his client’s fate on Friday.

Yemenis represent the largest bloc of detainees held at Guantanamo, but the United States has been reluctant to repatriate them, out of concern that their native country lacks a sound rehabilitation system. President Barack Obama has pledged to close the prison facility at Guantanamo within a year, and pressure is building to find homes for more than 60 detainees who have been cleared for release. Obama has tasked Attorney General Eric Holder Jr. with leading the detainee review.

Murphy said his client is now beholden to "a primarily diplomatic effort." The government accused him of assisting al-Qaeda, but Batarfi’s lawyers say he was on a humanitarian aid mission when Afghan forces scooped him up in 2001 and turned him over to the United States.

Lobbying Shop Johnson, Madigan Changes Its Name

The lobbying firm once known as Johnson, Madigan, Peck, Boland & Stewart is renaming itself Peck, Madigan, Jones & Stewart. Today the firm announced J. Jonathon Jones as a name partner.

Johnson, as in David Johnson, was dropped because Johnson announced his retirement in June. And Boland, as in Michael Boland, was cut because Boland announced he would be leaving this past December to start his own lobbying shop.

"It’s really a reflection of who’s here and that David is retired now,” Jones says.

Since joining the firm in 2007, Jones has lobbied on behalf of such major companies as Entergy Corp., Mattel Inc. and MasterCard. Previously he served as chief of staff to Sen. Tom Carper (D-Del.). Before the senator was first elected in 2000, Johnson served as deputy director of then-Gov. Carper's Washington office and as Gov. Carper's federal policy adviser.

Jones says the details of how the name change will affect his stake in the firm are still being discussed. According to disclosure reports, the 18-person firm had a strong 2008, recording a 14.8 percent increase in lobbying revenue up to $10.1 million -- good for No. 36 on this year's Influence 50.

When asked whether becoming a name partner will change his role within the firm, Jones says, “Not really.”

Gun Lobby Files New Suit in D.C. Over Federal Restrictions

Gun rights advocates have filed a new lawsuit in D.C. federal court, this time seeking to make it possible for American expats to buy guns when they’re back home in the United States.

The suit, filed Friday at the U.S. District Court for the District of Columbia, challenges a government requirement that forces gun buyers without a federal firearms license to fill out their state of residence on a special transaction form. It also targets a law that bar gun dealers from selling fire arms to non-U.S. residents for anything other than hunting or sports purposes.

The case is being brought by the Bellevue, Wash.-based Second Amendment Foundation, as well as two American citizens living in Canada and England. According to the complaint, the two individual plaintiffs have gun licenses from Arizona and Utah, but say they are unable to buy weapons while in the United States because they do not have a state of residence that they can use to fill out the required forms. They argue that the government’s restrictions violate the Second Amendment and Fifth Amendment equal protection rights of U.S. citizens who live abroad.

The plaintiffs are asking the court for an injunction that would prevent the gun restrictions from being enforced in respect to U.S. citizens who live abroad. The suit says nothing about non-citizens.

On March 9, the Second Amendment Foundation and three District residents filed a suit against D.C.’s government over its use of the California Handgun Roster, a limited list of handguns that civilians are allowed to purchase.

Alan Gura of Alexandria, Va.'s Gura & Possessky is representing the plaintiffs.