The BLT: The Blog of Legal Times

In Obscenity Case, Washington Courtroom is Silent

Updated July 14

Judge Richard Leon of federal district court in Washington had a warning: anybody under 18 had to leave the courtroom immediately. Several court security officers checked IDs. Outside the courtroom, on the sixth floor of the trial court in downtown, there was a cadre of officers guarding the door.

Today marked the opening of the government’s obscenity case against adult film producer John Stagliano and two of his companies, including Evil Angel Productions Inc. Stagliano was indicted in the U.S. District Court for the District of Columbia in 2008 on charges of producing two films that prosecutors allege have no artistic and scientific value.

The prosecution, the first obscenity case in Washington in more than 20 years, according to DOJ statistics, drew a crowd that included at least one adult movie director and one actress, Aurora Snow, who is writing about the case from a performer’s perspective. Law clerks and interns made up a portion of the audience.

Little is known about the jurors—eight women and six men, including two alternates—who must apply the “community standard” of Washington to decide whether Stagliano’s videos appeal to the "prurient interest." The jurors are also tasked with assessing whether the movies lack serious artistic or scientific value.

Leon conducted jury selection behind closed doors, and the judge has not allowed the public to see the jury questionnaire that prospective panelists filled out last week. Justice Department lawyers and attorneys for Stagliano debated the substance of the questions. Leon has described the questionnaire as “sensitive.” Pamela Satterfield, a Criminal Division trial attorney, said in court one of the questions was “way too detailed.”

This afternoon, the government showed the jurors a 50-minute clip of one of the two movies that are the centerpiece of the prosecution. The clip from a three-hour movie called “Jay Sin’s Milk Nymphos,” was displayed on two flat screen TVs, each facing the jurors from the opposite sides of the jury box.

The public could see only one screen, and some seats had better angles than others. There was no audio in the courtroom. The room was silent save for shuffling papers and air blowing through a duct.

Leon kept tight control, giving jurors headsets. He allowed two headsets to be used by the press. Leon said in court, before the movies were played, he was taking a “highly unusual step” in giving headsets to journalists who are covering the trial. He encouraged the press to share the headsets. Reporters did just that.

As the movie played, jurors for the most part kept their eyes trained on the screens. There was very little note-taking during the playing of the movie. Jurors kept their headsets on.

Leon today ruled that the defense attorneys will not be allowed to play the videos in their entirety, as the defense lawyers had asked. Last week, the judge ruled that Stagliano’s lawyers will not be allowed to call a medical expert and a film expert to testify about the scientific and artistic value of the movies.

In court, Stagliano was sitting between defense attorneys H. Louis Sirkin, lead counsel for John Stagliano Inc. and Paul Cambria Jr., lead counsel for Stagliano. A solo practitioner, Allan Gelbard, represents Evil Angel Productions. Davis Wright Tremaine partner Robert Corn-Revere is local counsel.

In opening statements earlier today, Cambria urged jurors to look at the world of 2010 and not the world of 1955. “Things have changed,” he said. When considering the so-called “community standard,” Cambria of Buffalo's Lipsitz Green Scime Cambria played up the fact the District is a diverse community.

Stagliano, an outspoken critic of government prosecution of obscenity cases, faces up to 32 years in prison if he is convicted on all seven counts. Trial resumes Wednesday.

Staff writer Julio Menache contributed to this report.

Actor Laurence Fishburne Thanked by D.C. Bar Foundation

Last night, Laurence Fishburne became the first actor to be honored by the D.C. Bar Foundation. Fishburne is the star of the one-man show "Thurgood," based on the life of Supreme Court Justice Thurgood Marshall.

At a reception after Sunday night's performance at the Kennedy Center, Marna Tucker, vice president of the foundation, presented Fishburne with a framed set of first-day Thurgood Marshall stamps.

Noticeably tired after finishing up his second performance of the day, Fishburne told the crowd of more than 200 people at the reception that before he took the role in ”Thurgood,” Marshall was “just a fact to me.”

“Doing this play I learned everything that you learned tonight,” Fishburne said. “Everything you heard I did not know.”

The play looks at Marshall’s legendary life and career, from his early schooling through the years fighting segregation in court, the twice-argued Brown v. Board of Education, and how President Lyndon Johnson put him on the Supreme Court.

Fishburne thanked the lawyers in the crowd for continuing to “use the law the way Marshall teaches us.” He said, “I hope that if my work inspires you to remember why you got involved in this crazy business of law to begin with, then I’ve done my job and hopefully you can go out and continue to do yours.”

Also speaking at the June 13 reception was John Payton, head of the NAACP Legal Defense Fund—a job that had once been held by Marshall himself. Payton called the play “sensationally inspiring” and said it should serve as a reminder that “things only get changed because of the impact of people.”

Marshall’s widow, Cecilia Marshall, and other members of the late justice’s family were in attendance.

The reception was sponsored by seven law firms—Arnold & Porter; Banner & Witcoff; Cohen Milstein Sellers & Toll; Finnegan, Henderson, Farabow, Garrett & Dunner; McDermott Will & Emery; Sutherland Asbill & Brennan; and Venable—as well as 13 of Marshall’s law clerks, SunTrust Bank, and The National Law Journal/Legal Times.

Nine of the former clerks were able to attend, including Kevin Baine, a partner at Williams & Connolly; Susan Low Bloch, Sheryll Cashin, a professor at Georgetown University Law Center; Mark Tushnet, a professor at Harvard law School; Kenneth Simons, a professor at Boston University School of Law; Ira Feinberg, a partner at Hogan Lovells; and Robert Weiner, associate deputy attorney general at the Justice Department.

Ted Olson Honored By Time Magazine

Theodore Olson of Gibson, Dunn & Crutcher can now count himself in the company of President Barack Obama, Justice Sonia Sotomayor, Conan O'Brien, Jet Li and Lady Gaga. All of those people, including Olson, have been named to Time magazine's annual list of 100 people who "most affect our world."

The list recognizes game changers in four categories: leaders, heroes, artists, and thinkers. Olson was named to the latter category along with David Boies, who is working with Olson on the constitutional challenge to a California law that bans marriage between same-sex couples.

The write-up, which was penned by Joel Klein, the chancellor of the New York City public-school system, begins, “David Boies and Ted Olson, both 69, are lions of America's legal establishment — Boies, a darling of the left; Olson, the right. Time and again they've clashed, most famously in Bush v. Gore, in 2000. Olson won that battle, and given how high the stakes were, the two lawyers might be forgiven any lasting bitterness. Instead, they've become great friends.”

Klein’s article, available here, goes on to note Olson and Boies’ work on the Prop 8 case, which the article calls an “extraordinary case” that could further their “long-shot mission” to secure the right to marry for gay and lesbian couples across the country.

Olson said in an interview this morning that he first heard he was to be honored by Time in February. “I have no idea how this came together. . . . I’m doubtful that I deserve to be on the list, but I am happy that I am.”

He said he did not speak with Klein for the article, but that he has known him for years and has “a great respect for the man.” While serving as the Justice Department’s antitrust chief in 1999, Klein hired Boies to handle the trial of landmark antitrust charges against Microsoft Corp.

The list includes some people who Olson said he hasn’t heard of, particularly in the artistic world. But he said he is looking forward to reading about them in the issue. (He hasn’t read all of it yet.) Of those he has heard of, Olson said he was particularly pleased to join a list that included Obama, Sotomayor, and Prince. “It’s pretty cool,” Olson said.

On Tuesday, Time will host a celebratory gala at the Lincoln Center in Manhattan, which Olson said should be interesting. “There is one artist on the list, Banksy, who hasn’t revealed his identity. He wears a paper bag on his head in the magazine. I’ll be interested to see if he does the same thing at the gala.”

The Prop 8 case, Olson said, has been set for closing arguments on June 16. Olson said much of his and Boies’ time has been spent preparing for that. Olson was also recently hired to lead the Republican National Committee’s challenge to bans on "soft money" donations to political parties. That case is a follow up to Olson’s Supreme Court win in Citizens United v. Federal Election Commission.

Olson said the Prop 8 case and the soft-money challenge have kept him busy enough that he hasn’t had a chance to talk to Boies about the Time honor. “But I guess I’ll be seeing him on Tuesday,” Olson said.

DOJ, Ticketmaster Settle Merger Case

Seeking to bolster competition in the ticket service arena, Justice Department antitrust regulators today announced a proposed settlement with Ticketmaster Entertainment and Live Nation that would require what officials called "significant" changes to their planned merger.

Antitrust Division lawyers simultaneously filed a complaint against and a settlement with Ticketmaster and Live Nation in the U.S. District Court for the District of Columbia today. Seventeen state attorneys general joined in the suit, which sought to block the merger. Live Nation, the country’s largest concert promoter, has been Ticketmaster’s largest client for a number of years. The merger was announced in February 2009.

The settlement requires Ticketmaster, represented by Gibson, Dunn & Crutcher, to license its ticketing software, divest certain ticketing assets and subject itself to behavioral remedies that prohibit retaliatory action against venues that do not use Ticketmaster. Justice officials said they expect ticket prices to fall with increased competition in the market.

Assistant Attorney General Christine Varney, who announced the settlement in a meeting with reporters this afternoon, said the Justice Department concluded the merger, as originally proposed, was anti-competitive.

“The required divestitures and behavioral prohibitions alleviate our concerns,” Varney, head of the Antitrust Division, said in prepared remarks. The settlement “will preserve competition in primary ticketing and maintain incentives to innovate and discount, thereby benefiting consumers. This is the right result.”

Under the settlement, Ticketmaster must divest the ticketing business Paciolan, which sells millions of tickets annually. Ticketmaster, according to the Justice Department, will divest more ticketing than it will gain through its acquisition of Live Nation. Also, Ticketmaster will be required to license its ticketing software to AEG, a competitor.

A lawyer for Live Nation, Daniel Wall, called the settlement a “fair compromise between a very aggressive enforcement theory and a remedy that still allows the parties to realize the value from the deal.” Wall is a partner in Latham & Watkins' San Francisco office and chair of the firm’s global antitrust and competition practice.

Gibson Dunn partner Steven Sletten, an antitrust litigator in the firm’s Los Angeles office, said in a statement that “we felt that the DOJ's case against the merger was not particularly strong on existing antitrust law.”

The parties, Sletten said, negotiated a resolution that allows the “merger to proceed without the need for lengthy litigation, and the business guys at Ticketmaster and Live Nation can get on with integrating the two companies for the benefit of consumers, artists, sports teams, venues, and pretty much everyone in the chain of live entertainment."

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.

Sex and the City to Sport Its Manolo Blahniks at Hogan's New York Office

It's not often here at the BLT that we get to write that a law office is going to get a little sexier. But on Sept. 2, Hogan & Hartson's New York office can expect just that, thanks to its selection as a filming location for the sequel to the Sex and the City movie.

The Am Law Daily reports that the atrium on the 25th floor of Hogan's offices at 875 Third Ave. will be transformed into Mr. Big's on-screen office, according to an internal e-mail from the firm. The internal e-mail warns partners to clean up their offices "so your boxes are not in the movie!"

Unfortunately, if you happen to be in New York that day, you’re probably not going to get a chance to see Carrie, Samantha, Charlotte, Miranda, et al. flirting shamelessly and sipping cosmos.

"We understand that your friends and family are BIG fans (and Mr. Big fans) of the series," the internal memo says. "Unfortunately, as much as we want to, we cannot accommodate guests, friends and family members and fellow fashionistas. If at all possible, we will try to arrange for Hogan employees to meet the stars and get autographs, but we cannot guarantee this."

The Am Law Daily has more here.

In Granting New Trial, Judge Questions Prosecution 'Tactic'

Calling a prosecutor’s failure to turn over favorable evidence to the defense conscious and deliberate, a D.C. Superior Court judge this afternoon granted a new trial to a D.C. man accused of fatally stabbing another man in a park in Southeast Washington in August 2007.

Judge Frederick Weisberg barely looked up from the bench as he questioned the prosecutor’s decision to conceal testimony that cast doubt on the credibility of the government’s chief witness against Joseph Harrington.

The new information—grand jury testimony from a woman whom the government did not call at trial last year—was not given to Harrington’s Public Defender Service lawyers until January, a month after Harrington was convicted. Assistant U.S. Attorney Vivien Cockburn argued in briefs that the testimony wasn’t material and would not have changed the outcome of the trial.

Harrington’s lawyers, Thomas Dybdahl and Christopher Roberts, say the concealed testimony was crucial to the defense and they alleged Cockburn violated her obligation to produce exculpatory material. “We believe what was done was not done inadvertently,” Dybdahl said in court today. The judge agreed.

“In my opinion,” Weisberg said, “it was patently disclosable, not a debatable point.” Weisberg called the failure to the disclose the information a prosecution tactic, saying the testimony “could be mischievous in the hands of a good defense lawyer.”

It is the jury's role, and not that of the prosecution, to determine the credibility of witnesses, Weisberg said. Granting a new trial motion, the judge said, is “extreme” and costly, and it should serve to remind prosecutors of their obligations. Weisberg said he did not see his role as one requiring him to bring sanctions against the prosecutor.

The judge set a May 1 status conference. Harrington was ordered held in custody pending trial.

Leahy on the Supreme Court, Detainees, and Batman

In addition to floating the creation of a “truth commission” for the Bush administration, Sen. Patrick Leahy (D-Vt.) had a few nuggets of interest this morning in his speech at Georgetown University, where he got his law degree. Let’s empty our notebook.

Friends on the bench: Judge Robert Katzmann of the U.S. Court of Appeals for the 2nd Circuit introduced Leahy and offered kind words. A former Georgetown professor and Brookings Institution fellow, Katzmann said he was nervous before being nominated to the 2nd Circuit in 1999 but that Leahy put him at ease by showing him some recent photography. Also in the audience today: Judge J. Garvin Murtha of the U.S. District Court for the District of Vermont.

Supreme Court diversity: Noting the disclosure last week that Justice Ruth Bader Ginsburg had undergone surgery for pancreatic cancer, a student asked Leahy, who is chairman of the Senate Judiciary Committee, to share any insights he might have into future nominations and his thoughts on the Court’s diversity. Leahy sidestepped the first part of the question, sending his best wishes to Ginsburg, then said: “I would like to see a Supreme Court that more directly resembles America. I would like to see more women on the Supreme Court. I would like to see more minorities on the Supreme Court.” He added that he would like to see more nominees “from outside what I call the judicial monastery,” giving former Justice Hugo Black as an example. (Black had been a U.S. senator from Alabama before joining the Court.)

What to do with detainees: Leahy revealed that he’s been meeting with White House Counsel Greg Craig to discuss what to do with the remaining detainees at the Guantánamo Bay detention camp. A student asked Leahy his opinion on the most feasible legal options for moving the detainees, and Leahy replied, “It is an extraordinarily complicated issue. ... We’re trying to find a way to do that.” He didn’t give further details.

The Batman question: Leahy’s appearance in "The Dark Knight" has earned $125,000 in residuals for a Montpelier, Vt., public library where Leahy got his first library card. The topic came up when, during today’s question-and-answer session, a student praised Leahy’s acting skills. Nearly every student raised a hand when Leahy, a longtime Batman fan, asked who had seen the film. He then reenacted his part, minus the Joker: “We’re not intimidated by thugs!”

Ron Klain Dishes on HBO's "Recount"

When Washington lawyer Ron Klain served as general counsel of the Florida recount effort for Al Gore’s 2000 presidential campaign, he thought the debacle might one day make a good “horror flick.” Instead, it’s the subject of HBO’s movie, “Recount,” which debuts Sunday night, and stars Kevin Spacey as Klain. “The guy’s a great actor. It’s a little surreal,” says the real Klain, who is today general counsel of investment firm Revolution, based in the District.

The infamous 36-day recount culminated, of course, with the U.S. Supreme Court confirming George W. Bush as the winner of Florida’s electoral votes. Klain says he’ll never get over that decision, but it certainly didn’t turn him off to politics. He has since served on the presidential campaigns of Sens. John Kerry and Joseph Biden. Before joining Revolution in 2005, he spent five years as a partner in O’Melveny & Myers’ D.C. office.

Klain has seen “Recount” three times, and will spend Sunday evening watching its HBO debut with his family in Indianapolis. He says the movie is generally accurate, but “a lot of the behind-the-scenes stuff is fictionalized.” Klain adds that there were 100 lawyers working on the recount, while only eight of them appear on screen. As a consequence, he says those lawyers get more credit — and more blame — than they deserve. “It looks a lot more like a one-man show than it was in real life.”

Another star performance in “Recount” is Laura Dern’s portrayal of Katherine Harris, who was both Florida Secretary of State and co-chair of Bush’s Florida campaign. Throughout the ordeal, Harris developed as one of the most controversial figures involved. As for Dern’s portrayal of her, Klain says, “If I were allowed to pass out Emmys, she definitely would get one.”

Legal Times Goes to the Movies

Here at the LT, we just can’t seem to escape from the attorney world even on the weekend. So, much as an associate might spend those precious free days poring over depositions, Sunday evening movie night turned lawyerly with the new law firm film Michael Clayton.

And true to the rave reviews from critics, Clayton, (played by Hollywood’s dream machine George Clooney) has good taste. That’s right, he reads Legal Times. He has a copy on his desk.

But even with Clayton’s estimable choice in reading material, he seems to be lacking in job satisfaction. Sure, he works for a top New York law firm and drives around in the firm’s Mercedes S-Class sedan, working magic for his fellow attorneys’ trouble-ridden clients. Yet he see himself as a glorified janitor who can’t even make equity partner.  Sound familiar?

Despite his special counsel status, Clayton is called upon to “fix” all of the firm’s nasty little problems, including troubles surrounding a $3 billion class action lawsuit. Not to bust any plot bubbles or anything.

The film is smart, has solid acting, an engaging storyline, and a decent number of scenes with Clooney staring off into the distance. The LT office poll says go see this movie at the theater. And, no, it’s not just because of the product placement.