The BLT: The Blog of Legal Times

Entertainment Lawyer Representing Salahis

Paul Gardner has built a Baltimore law firm known for representing musicians and other entertainers. Now, he also counts among his clients the aspiring reality TV stars who crashed last week's White House state dinner.

A woman who answered the phone this morning at the Gardner Law Group confirmed that Gardner is representing Michaele and Tareq Salahi. Gardner did not return a message requesting comment. The Associated Press reported over the weekend that he had posted a comment on the couple’s Facebook page saying, “My clients were cleared by the White House, to be there.” The page has since been swamped with other messages.

Gardner is no stranger to the intersection of social networking and the law. Last year, he told a legal marketing newsletter about using MySpace to help build his practice, beginning by adding “friends” to his page and then communicating with at least one musician.

Gardner (Delaware, Howard Law) was an associate at what was then DLA Piper Rudnick Gray Cary from 2001 to 2004, according to his online résumé.

On Thursday, the House Homeland Security Committee is expected to hold a hearing on the Salahis’ attendance at the state dinner. Chairman Bennie Thompson (D-Miss.) said in a statement today that he is inviting the Salahis to testify.

Prosecution, Defense Spar Over Presiding Judge in Wone Case

For months now, the opposing lawyers in the Robert Wone criminal case in D.C. Superior Court have argued back and forth about the evidence (or lack of it) at several court hearings.

Now a new fight has come up among the prosecutors and the defense lawyers: whether or not the presiding judge, Frederick Weisberg, should be allowed to stay on the case once the annual judicial calendars change at the start of the year.

Judges in Superior Court, much like judges across the country, are assigned to hear certain cases for a set time period. Weisberg’s term hearing “Felony 1” cases, which includes homicides, ends at the end of the year when he will begin hearing a “Felony 2” calendar. (Wone is a homicide victim, but nobody is charged with murder in the case.) Judge Lynn Leibowitz takes over Weisberg’s caseload in January.

Lawyers for the three men charged in the Wone case—the defendants are Joseph Price, Dylan Ward and Victor Zaborsky—say Weisberg should be allowed to continue to hear the case in the interest of judicial economy. The lawyers say Weisberg is familiar with the issues in the prosecution and that the trial, which is scheduled for May, would likely be delayed if a new judge is brought into the fold.

“[T]he notion that a new judge—no matter how capable—could get up to speed in four months is not only unrealistic, but a practical impossibility,” the defense lawyers, David Schertler, Bernie Grimm and Thomas Connolly, said in court papers filed Nov. 24. CLick here (.pdf) here for a copy of the court papers.

Zaborsky, Ward and Price, a former Arent Fox partner in D.C., are charged with obstruction, conspiracy and evidence tampering. Wone, a former Covington & Burling associate who'd become general counsel for Radio Free Asia, was founded stabbed to death in Price and Zaborsky's home.

The defense lawyers also say that any delay will increase the financial burden on the defendants.

Last week, prosecutors dismissed the financial concern outright and said that there is no prejudice in having a new judge come on board.

“The financial standing of any defendant cannot possibly be a relevant or legitimate reason to depart from the calendar assignments already set by the Court,” Assistant U.S. Attorney T. Patrick Martin said in court papers filed Nov. 23. “These defendants are no more entitled to special treatment than any other defendant in our criminal justice system.” A copy of the government's filing is here (.pdf).

D.C. Superior Court Chief Judge Lee Satterfield was not immediately reached for comment this afternoon about the spat over the presiding judge in the Wone case. The chief judge has the authority to overrule calendar assignments and to assign a case to a particular judge.

Judicial Applicant Tapped to Represent Woman in Stalking Case

A criminal defense lawyer in Washington who has applied for a judgeship on the D.C. Superior Court bench has been tapped to represent a woman charged with stalking a magistrate judge.

The lawyer, Dorsey Jones Jr., made an appearance this month in the government’s stalking and burglary case against Taylar Nuevelle, court records show. Jones replaces solo practitioner A. Kevin Fahey. Jones was not immediately reached for comment at his office or via e-mail today and Fahey declined to comment about his withdrawal from the case.

Jones is among 28 contenders vying for the vacancy created by the retirement of Judge Geoffrey Alprin. The D.C. Judicial Nomination Commission has not named the three finalists. Earlier this year, Jones put his name into contention the vacancy created by retiring Judge Rafael Diaz. Jones was not named a finalist.

A jury in late October had been set to hear the case against Nuevelle. But Nuevelle was hospitalized and the presiding judge, Russell Canan, released the jurors. Nuevelle’s trial on stalking and burglary charges has been postponed until January to allow Jones to catch up to speed on the case. Nuevelle, who was arrested last year, was indicted in April. She has pleaded not guilty.

Prosecutors say she broke into the home of Magistrate Judge Janet Albert in September 2008 with the intent to stalk and harass her. Nuevelle is accused of sending hundreds of text and e-mail messages to Albert, whom she dated for a year in 2008.

Albert and Nuevelle broke up in September, court records show. In October 2008, Nuevelle filed a judicial misconduct complaint against Albert that accuses her of abusing her position as a judge. Albert’s lawyer, Robert Spagnoletti of D.C.’s Schertler & Onorato, has called the complaint meritless. Albert is expected to testify against Nuevelle.

Supreme Court Sides With Florida Inmate on Ineffective Assistance

Returning from its Thanksgiving break, the Supreme Court today issued a powerful unsigned "per curiam" opinion agreeing that the ineffective assistance of counsel for Florida death row inmate George Porter Jr. prejudiced the sentence he received after his murder trial in 1988. He was convicted in the murder of a former girlfriend and her boyfriend. The Florida Supreme Court and the U.S. Court of Appeals for the 11th Circuit previously rejected his ineffective assistance claim.

Ruling in Porter v. McCollum, available here, the Court extensively detailed Porter's "horrible family life" and his trying Korean War experiences that earned him two Purple Hearts and other decorations -- none of which was told to the trial court as mitigating evidence during sentencing. The trial lawyer's failure to introduce the evidence "did not reflect reasonable professional judgment" and could well have affected the outcome of the case, the Court said.

In language that is sure to be cited in future cases involving veterans, the Court said that the fact that Porter went AWOL in Korea did not detract from the significance of his combat experience as mitigating evidence. "Our nation has a long tradition of according leniency to veterans in recognition of their service, especially for those who fought on the front lines as Porter did. Moreover, the relevance of Porter's extensive combat experience is not only that he served honorably under extreme hardship and gruesome conditions, but also that the jury might find mitigating the intense stress and mental and emotional toll that combat took on Porter."

The ruling, which does not disturb the finding of guilt, sends the case back to the 11th Circuit for further proceedings affecting his sentence. The high court typically issues "per curiam"  or "for the court" opinion in cases in which the justices are in agreement without needing to hear oral argument.

The Court on Monday also issued other orders and heard oral arguments. More later at nlj.com

False Statements Law Looms for White House Crashers

This weekend, the U.S. Secret Service interviewed the Virginia couple who somehow made their way into last week's White House state dinner. Two U.S. senators also joined the chorus calling for the couple, Michaele and Tareq Salahi, to face criminal charges.

What law would prosecutors turn to if they decided to pursue a case?

The clearest choice might well be what’s usually called the false-statements statute, or 18 USC Sec. 1001, which allows for the prosecution of anyone who “falsifies, conceals, or covers up by any trick, scheme, or device a material fact” or “makes any materially false, fictitious, or fraudulent statement or representation.”

Prosecutors have turned to the law in a wide variety of cases. Before his indictment was thrown out, then-Sen. Ted Stevens (R-Alaska) was found guilty under the law on charges stemming from his Senate financial disclosure forms. Former General Services Administration chief of staff David Safavian was found guilty under the law a year ago for failing to disclose to the FBI or on a financial disclosure form that he took a golfing trip with lobbyist Jack Abramoff.

Lawrence Robbins, who represented Safavian, said the false-statements statute could be a natural tool for prosecutors, though the case could cause potential embarrassment for the Secret Service.

“Something tells me that this would not be a particularly attractive case for the government to bring, because the way you would defend such a case, if the facts warranted, is to show the circumstances that would reveal that the people who were supposed to be asking the right questions did not ask the right questions,” said Robbins, a name partner at Robbins, Russell, Englert, Orseck, Untereiner & Sauber.

Central to any such case, Robbins said, would be what questions the Salahis were asked and what answers they gave. If they lied and said they were invited when they were not, then the government might have a strong case. On the other hand, “Did somebody fail to ask them the right questions and they got through?” Robbins said. “That can make a world of difference.”

Even if they did not outright lie, the government could argue that the couple had a duty to say something more than they did and that, by not doing so, they made a false representation. In that scenario, Robbins said, prosecutors would have to show that the couple had a “duty to speak.”

Bryan Cave partner Daniel Schwartz said the government might consider at least one other factor before it pursues a false-statements case. “While perhaps they could make out a criminal charge,” he said, “it might not be worth it to give them some more time in the limelight.”

UPDATE (5:58 p.m.): Another frequently discussed possibility is that the Salahis could be prosecuted for trespassing. But Mark Goldstone said that is unlikely, given the facts that have come out so far and the D.C. law on trespassing.

Goldstone, a lawyer, estimates he's represented almost 1,000 people arrested at the White House, most in connection with political protests. The D.C. trespassing law, he said, is designed to prosecute "failure to leave a place after you’ve been told that your right to be there has lapsed." No one has said that the Salahis were told to leave and refused.

"I think it has to be more than just, 'Well, you knew you had inadequate credentials,'" Goldstone said, adding that none of the cases he has seen are quite like this one.

The D.C. law is Title 22, Section 3302, available here.

This Week in the National Law Journal

Jordan Weissman profiles D.C. Attorney General Peter Nickles and his efforts to reform his 350-lawyer office by bringing in new lawyers and making the District a tougher target for the litigious. But Nickles' tough style has brought on criticism, as some in the D.C. Council have begun to refer to him as Mayor Adrian Fenty’s very own Dick Cheney.

Jeff Jeffrey reveals details about the proposed structure of a firm that could be created from a merger between Hogan & Hartson and Lovells next year. The firm’s top leaders have hit the road to drum up support in advance of a partnership vote on the deal in mid-December.

Karen Sloan takes a look at efforts to boost the number of women in top law firm positions as part of a National Law Journal special report on women in law. Women account for more than 45 percent of law firm associates but only 19 percent of partners. So the Project for Attorney Retention is spearheading an initiative called the Diversity & Flexibility Connection to ensure firms have flexible working schedules to help retain women.

Marcia Coyle dissects the Supreme Court bound case brought by Edina, Minn.-based firm Milavetz, Gallop & Milavetz, challenging a 2005 federal law that requires them to advertise as a debt relief agency. The case will be heard Dec. 1.

Leigh Jones eyes the growing trend of third-party litigation funding and the challenges the field is facing. Third-party funding firms provide money to a corporation to pay for the cost of arbitrating or litigating a claim as a plaintiff, then get a piece of the potential award.

The Morning Wrap

KSM's Jurors: The Washington Post reports on the dynamics of the potential jury pool in New York City for the expected trial of Khalid Sheik Mohammed and four others tied to the Sept. 11 terrorist attacks.

Anti-Foreclosure Push: The Obama administration will outline new efforts today designed to increase the number of borrowers who receive mortgage relief, The Wall Street Journal reports. Part of the new plan: monitoring the largest mortgage servicing companies on a daily basis.

Nazi Trials: The New York Times reports that the prosecution of Nazi-era war criminals has become increasingly difficult, as survivors and defendants have aged and passed away. The latest is example is John Demjanjuk, a retired American autoworker on trial in Munich and accused of helping to force 27,900 Jews to their deaths.

Drug Courts: The Associated Press, via Law.com, reports on the success of the nation's drug courts, of which there are more than 2,300. In the 20 years they've been around, they've been credited with reducing crime and saving the cost of locking people up. The Obama administration wants to boost funding.

Beach Law: The Miami Herald has a preview of this morning's Supreme Court oral argument involving a Florida beach renourishment dispute, which pits the state against the affected homeowners.

ABA Backs Federal Court Trials of Alleged 9/11 Plotters

The president of the American Bar Association sent a letter to Attorney General Eric Holder Jr. today praising the decision to pursue federal court prosecutions of five Guantanamo detainees with alleged ties to the 9/11 attacks.

The Nov. 25 letter, signed by ABA President Carolyn Lamm, comes after Holder became the target of criticism from conservative politicians for his decision to try alleged 9/11 mastermind Khalid Sheikh Mohammed and the others in New York.

The letter calls the military commissions before which the detainees were originally charged “constitutionally flawed” and lauds the U.S. court system as “well-equipped to handle trials of this magnitude.”

“[N]o matter how heinous the charges, the long awaited trials of these alleged terrorists must be both fair and perceived as fair, or the resulting verdicts will not be recognized as legitimate,” the letter reads. “The accused must receive the competent assistance of counsel, be afforded due process, and treated as innocent until proven guilty.”

Lamm was not immediately available for comment.

The ABA posted the letter in its entirety on its Web site.

Gobble, Gobble v. Quack, Quack

Just about everyone knows now that Justice Antonin Scalia likes to hunt. Those sporting instincts were painfully revealed when controversy erupted over his refusal to recuse himself from a case involving then-Vice President Dick Cheney shortly after he went duck hunting with Cheney. But it's not the quack, quack of the duck that triggers the sporting challenge for Scalia. It's the gobble, gobble of the wild turkey.

In the just-published book, "American Original: The Life and Constitution of Supreme Court Justice Antonin Scalia," by USA Today's Joan Biskupic, her subject talks about how much he enjoys the sport of hunting and the beauty of the outdoors. And he prefers hunting turkeys to other game. Why? In one of a number of interviews he gave to Biskupic, Scalia explained:

"It is more proactive. You're not just waiting. There's something about hearing them. Have you ever heard a turkey gobble? It's a very strange sound, like a wooden rattle. [You] hear that far away and then make sounds like a hen to induce [the turkey] to come closer and closer. Finally, he sticks his head up over a log, and you have to take your shot, or else you've lost him. Turkeys are very wily creatures. they have superb eyesight and they're very cautious. You get one shot. If you miss, the whole day's ruined."

First Amendment No Shield for Debt Collectors Gone Bad, Court Says

By Marcia Coyle

Debt collectors who use unfair or deceptive tactics during collection litigation cannot rely on the First Amendment's petition clause as a defense, ruled the Alaska Supreme Court recently in the first appellate decision on the issue.

In an increasing number of consumer cases, debt collection agencies have been arguing that their litigation tactics are immunized from suits under state and federal unfair trade practices laws because those suits burden their constitutional right to petition the courts, according to Deepak Gupta of Public Citizen Litigation Group, appellate counsel to the debtor in the Alaskan case.

“The Alaska Supreme Court’s ruling sends the message that debt collection companies can’t get away with abusive tactics simply by hiring lawyers,” said Gupta. “The court rejected a dangerous new immunity defense that would have created a gaping hole in consumer protection law.”

The Alaskan case—Pepper v. Routh Crabtree—stemmed from an attempt by Checkrite of Anchorage, a collection agency, to collect $518.80 in dishonored checks allegedly written by Robin Pepper, a mentally disabled woman. Checkrite hired the Routh Crabtree law firm in Anchorage to recover the amount owed, and the firm subsequently sued Pepper.

Pepper filed a separate suit alleging the collection agency and law firm had violated the state Unfair Trade Practices Act (UTPA) by not giving her proper notice of the lawsuit. She charged that they sent papers to a nonexistent address, misrepresented to the court that she was competent, and tried to get a default judgment against her without notifying her counsel, Alaska Legal Services.

Routh Crabtree argued that Pepper’s claims impermissibly sought to impose civil liability on the law firm and the collection agency for exercising their constitutional right to petition the government. Pepper contended that the UTPA covered unfair and deceptive debt-collection practices that occur in the context of litigation and that neither the so-called Noerr-Pennington doctrine, nor the petition clause on which that doctrine was based, immunized these practices.

The Alaska Supreme Court on Nov. 20 agreed with Pepper after finding that subjecting Routh Crabtree and its client to potential liability under the UTPA would not chill their exercise of the right to petition.

“As Pepper contends, `no debt collector has a legitimate interest in pursuing collection litigation without notifying debtors, or in seeking to default incompetent debtors without notice to their lawyers or guardian,’” said the court.

Richard Crabtree of Routh Crabtree was not available for comment.

Public Citizen’s Gupta said the right to petition defense has been raised in a number of federal district courts, but the Alaska Supreme Court was the first appellate court to address it.

The state high court, he added, applied the same constitutional analysis that federal courts will apply. “We’re encouraged and think it will be persuasive to federal courts.”