California’s Fifth District Court of Appeal Rules in Favor of Pro bono Client, Removing Improperly Imposed Restraining Order
Jenner & Block represented a pro bono client in removing an improperly imposed restraining order against her. Our client, M. C., had presented evidence to a judge in Tulare County Superior Court that her ex-husband had a history of inflicting serious, and in some cases life-threatening, physical abuse on her. The trial court nevertheless granted mutual restraining orders against both M.C. and her ex-husband, based on an April 2017 incident in which M.C. went to her ex-husband’s home to pick up their two minor children. The encounter became violent; M.C.’s ex-husband grabbed her by the neck and tried to drag her around the house, until she bit him and broke free. As she fled the house, she threw a lamp that she had picked up inside at an unoccupied car in the driveway. Finding that both parties “acted primarily as aggressor,” judge imposed mutual restraining orders against both parties. Despite finding that acts of abuse had occurred, the trial court also maintained a joint custody order of the parties’ two children.
But on September 26, 2018, the Fifth District Court of Appeal lifted the restraining order against M.C. and reversed the joint custody order. In the opinion authored by Justice Jennifer R. S. Detjen, the Court of Appeal noted that M.C. violated no order in going to her ex-husband’s home and that there was no finding that she placed him in fear or otherwise harassed him. The Court of Appeal further found that her conduct was a direct response to abuse at the hands of her ex-husband and occurred because she was fleeing the location where that abuse occurred. Additionally, the Court of Appeal held that the trial court had failed to apply the presumption against granting an abuser joint custody of the children as required by law.
The team representing M.C. included Partner Kirsten Hicks Spira and Associates AnnaMarie A. Van Hoesen, who argued the case in front of the appellate court, and Elizabeth H. Capel. Our firm was co-counsel with Anya Emerson, Jennafer Dorfman Wagner, Cory D. Hernandez and Erin C. Smith of the Family Violence Appellate Project and Jeneé Barnes of Central California Legal Services.
Team's Client Receives Permanent Resident Status
In 2015, former associate Emily Deininger, former partner Jared Manes, and Partners David C. Lachman and Michael W. Ross obtained a grant of asylum for Marcos, a seventeen-year-old Honduran boy who had fled to the United States because he was being persistently abused by his grandmother and the other family members with whom he had been living. Marcos’s case was referred to Jenner by Kids in Need of Defense (“KIND”), a not-for-profit organization that identifies pro bono attorneys for unaccompanied alien children, in October 2014.
Ms. Deininger and Mr. Manes filed an affirmative asylum application on Marcos’s behalf in April 2015, contending that he had been abused, and had a reasonable fear of future abuse, because he was a member of a “particular social group” of children living in Honduras without the benefit of parental protection, , and that the Honduran government has been systematically unable or unwilling to protect such children from child abuse. Marcos had never met his father, and his mother had moved to the United States when he was only two years old. Marcos is also Garifuna, an indigenous ethnic group, which exposed him to widespread racism and caused him to be ostracized at school.
After submitting Marcos’s asylum application, Ms. Deininger and Mr. Lachman worked to prepare supplemental briefing and demonstrated through three expert reports that Marcos had physical scars consistent with long-term abuse, that he was suffering psychological symptoms of severe emotional and physical abuse, and that the government of Honduras was unable and unwilling to protect children who are without parental protection. Ms. Deininger and Mr. Lachman then represented Marcos at his successful asylum interview with the Newark Asylum Office.
In 2017, Ms.Deininger , Mr. Manes and Associate Melissa T. Fedornak then filed a green card application on Marcos’s behalf. In July 2018, Marcos received legal permanent resident status, making him eligible to naturalize as a US citizen in 2022. Marcos is now living happily with his mother in the Bronx, where he is attending high school and enjoying spending his free time playing soccer with friends.
The American Lawyer Names the Firm its “Pro Bono Champion”
The American Lawyer named the firm its “Pro Bono Champion,” a new award as part of the publication’s newly revamped set of recognitions. The award is “meant to honor the exceptional work that goes on across the entire legal services delivery spectrum and the increasing interconnectedness among members of that community,” according to The American Lawyer. This recognition is in addition to the firm’s number one US pro bono ranking, which The American Lawyer announced in June. Award recipients receive formal recognition at a gala in New York on December 5.
Jenner & Block Secures DC Circuit Victory in Pro Bono Parole Case
On September 4, a Jenner & Block team led by Associate Zachary C. Schauf prevailed in the DC Circuit on behalf of an inmate, Edward Ford, who challenged the US Parole Commission’s unlawful practice of delaying parole hearings for certain inmates convicted of offenses under both the US Code and DC Code. Expressly splitting with the Seventh Circuit, the DC Circuit ordered the commission to hold a new hearing to redress the unlawful delay. Thanks to this ruling, Mr. Ford now has a real chance of obtaining parole during his lifetime.
In 1980, Mr. Ford committed three murders in three months—one in Virginia (yielding a conviction in federal court), one in the District of Columbia (yielding a conviction in DC court), and one in Maryland (yielding a conviction in Maryland court). Because the District of Columbia does not operate its own prisons, DC Code offenders serve their time in federal custody and the US Parole Commission oversees their parole hearings. But DC Code sentences—and inmates’ right to seek parole from them—remain governed by DC law. Under DC law, Mr. Ford became eligible for parole from his DC Code sentence in 2000 and should have received a DC Code parole hearing at that time.
But for inmates like Mr. Ford, who are serving both DC Code and US Code sentences, the commission has promulgated a regulation that delays DC Code parole hearings until the inmates are deemed suitable for parole from their federal sentences. For Mr. Ford, that did not occur until 2005 and, as a result, Mr. Ford’s parole hearing occurred five years later than it should have.
That delay has consequences. The applicable DC Code parole law measures an inmate’s suitability for parole based on a numerical “grid score.” Every time an inmate has a parole hearing, he has the chance to lower his grid score by one—but only one—point by showing rehabilitation. So the earlier and more frequently these hearings are, the better an inmate’s chances are of parole. Delaying these hearings, by contrast, means an inmate’s score is permanently higher.
When the commission denied Mr. Ford’s most recent request for parole in 2012, Ford brought suit in the US District Court for the District of Columbia. The district court granted summary judgment to the government. Mr. Ford appealed and the DC Circuit appointed Jenner & Block as amicus curiae to present arguments in Mr. Ford’s favor. Mr. Schauf presented oral argument on April 26, 2018, before Chief Judge Garland and Judges Griffith and Srinivasan.
On September 4, 2018, the DC Circuit unanimously reversed in an opinion written by Judge Srinivasan. The court noted that, 25 years ago, the Seventh Circuit had approved the commission’s approach. But the court explained that it “must give effect to the terms of [the governing statute] as we understand them,” even if it required “reaching a different conclusion.” According to the court, the governing statutes “require the commission to hold an offender’s first DC parole hearing at his DC parole eligibility date.” And in “light of th[e] substantial benefits from holding DC parole hearings as soon as an offender is eligible for DC parole,” the court found it could not “write off the inconsistency between the commission’s regulation and [the statutes] as immaterial.”
The court reversed the grant of summary judgment in the commission’s favor and remanded with directions to enter summary judgment in Mr. Ford’s favor. The court ordered the commission to hold a new hearing for Mr. Ford, applying the proper standards.
Despite his grave crimes, Mr. Ford has worked tirelessly to rehabilitate himself, lowering his grid score at each hearing he has received. And while Mr. Ford is still facing a life sentence in Maryland, the DC Circuit’s decision has given Mr. Ford hope that he may obtain release from prison during his lifetime.
Partners Max Minzner and David W. DeBruin supervised the case, edited the briefs and served as moot court judges, along with Partner Jessica Ring Amunson, Associates Previn Warren, William K. Dreher and Benjamin M. Eidelson, and former associate Kendall Turner. Cheryl Olson provided paralegal assistance and Sheree Anyiam provided secretarial assistance.
Court Reverses Murder Conviction for Pro Bono Client
A team of Jenner & Block lawyers led by Partner Gabriel A. Fuentes obtained the appellate reversal of a Kane County murder conviction based on what the court said was inadmissible expert testimony from a well-known former FBI profiler and television commentator. The firm represented Shadwick King pro bonoin the appeal of his murder conviction in the death of his wife, Kate.
On August 21, the Illinois Appellate Court ruled that the State should not have been allowed to use the expert testimony of Mark Safarik, who has appeared on numerous television shows, including Forensic Files, to establish that Kate King had been killed in the first place – a key disputed issue at Mr. King’s 2015 trial.
Kate King was found dead on a set of railroad tracks near the couple’s Geneva, Illinois, home in July 2014. Investigators suspected Mr. King of being involved in her death, and the evidence against him at his March 2015 trial was heavily circumstantial. The forensic pathologist for the defense testified that Mrs. King likely had died of heart failure. The State’s medical examiner, after at first leaving the autopsy report blank for “manner of death” and telling the lead detective at the autopsy that Mrs. King’s cause of death would be listed as undetermined, testified at trial that she was manually strangled.
The Appellate Court ruled that the State “broke the tie” with the profiler, Mr. Safarik, who was not qualified to give medical testimony yet testified that her cause of death was manual strangulation. The court also held that the trial court erred in allowing Mr. Safarik to testify to his opinion that the crime scene was “staged” by someone who wanted to distance himself from the crime scene and Mrs. King to throw off law enforcement. Mr. Safarik’s “staging” testimony, the court ruled, strayed into impermissible “profiling” testimony that “indirectly, but pointedly” identified Mr. King as the killer, “because, under the circumstances, no one else fit that profile.” The Appellate Court remanded the case to the Kane County Circuit Court for retrial. Prosecutors have said they will ask the Illinois Supreme Court to review the decision.
Mr. Fuentes briefed and argued the case in this complex appeal, and with him on the brief were Partner Clifford W. Berlow and former associate Philip Kovoor.
Lawyers and Staff Honored at Annual Pro Bono Awards Celebration
On July 18, the firm hosted its annual Pro Bono Awards Celebration, honoring the firm's long-standing commitment to pro bono work and those who performed and supported pro bono service in exceptional ways. Partners David W. DeBruin and Sarah F. Weiss received the "Albert E. Jenner Pro Bono Award (AEJ Award)" – an award recognizing firm lawyers for their pro bono work. Paralegal Daniel Garcia and Legal Assistant Nora Peralta received the inaugural "Jenner & Block Award for Excellence in Pro Bono or Public Service" – an award recognizing professional staff who support the firm's pro bono and community service efforts.
"It [Our pro bono work] changes people's lives and in some cases it saves people's lives; people who need but would not have access to legal services if not for the lawyers at Jenner & Block…and many others in the firm who share that same commitment," said Pro Bono Committee Co-Chair Andrew J. Thomas.
The honorees were presented with their respective award by their nominating lawyer. They also gave remarks after receiving their honor.
Ms. Peralta: "I'm going to leave you with a new word to add to your vocabulary: volunesia. It's that moment when you forget that you are volunteering to change lives because doing so is changing yours."
Mr. Garcia: "There's a commitment to the work that we do and this kind of event really recognizes the firmwide efforts to advocate for people and pursue justice. I think it's remarkable."
Mr. DeBruin: "For me, the greatest return from pro bono cases has been working with individuals and finding that when you listen to them, when you respect them as people and when you fight for them, what a difference that makes to that person."
Ms Weiss: "One reason I do this work is that it is truly one of my greatest privileges as a lawyer to try to help the people and families who are most impacted by our criminal justice system."