Jenner & Block Secures DC Circuit Victory in Pro Bono Parole Case
Jenner & Block is proud of its 2019 pro bono results:
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.
Article Features Firm’s Efforts to Build Pro Bono Program in London
To discover the keys to successfully launching a pro bono program in a new office, The Global Legal Post turned to Jenner & Block Partner Andrew W. Vail, co-chair of the firm’s Pro Bono Committee who is based in Chicago, and Partner Christian Tuddenham and Associate Victoria C. Fitzpatrick, both members of the Pro Bono Committee and lawyers at the firm’s London office. Titled “Pro bono: Leading the Way,” the article notes that Jenner & Block is regularly named the top pro bono firm in the United States. When the firm opened its London office in 2015, it faced the challenge of how to build a new program “from scratch.” Ultimately, the article observes that “Jenner & Block’s London office is finding that consistent and persistent effort is the key to integrating pro bono into the fabric of daily practice. At the end of the day, the collective will to create a meaningful program is perhaps most critical, and especially so when it is supported by the ethos and culture.”
Court Reverses Murder Conviction for Pro Bono Client
A team of Jenner & Block lawyers obtained the appellate reversal of a Kane County murder conviction based on what the Illinois Appellate Court said was inadmissible expert testimony from a well-known former FBI profiler and television commentator. The firm represented Shadwick King pro bono in the appeal of his murder conviction in the death of his wife, Kate.
On August 21, 2018, 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 appealed the decision to the Illinois Supreme Court, which in January 2020 affirmed the Appellate Court’s remand for a new trial based on the inadmissibility of Mr. Safarik’s testimony.
The team was led by former partner Gabriel A. Fuentes, and with him 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.
Jenner & Block Team Defends Pro Bono Client from Murder Charge
"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."
Jenner & Block Partner Rick Richmond, co-founder and managing partner of the Los Angeles office, led a trial team that obtained an involuntary manslaughter verdict for a pro bono client against whom prosecutors sought a first-degree murder charge.
The firm represented Dietrich Canterberry, who faced the charge after an altercation outside a Hollywood nightclub resulted in a fatality in October 2016.
Following a three-week trial in Los Angeles, the judge overseeing the case instructed the jury to consider charges of second-degree murder, voluntary manslaughter, or involuntary manslaughter and not the first-degree murder charge initially sought. On June 26, the jury acquitted Mr. Canterberry of the two more serious charges. Sentencing is scheduled for later this year.
The trial team included Associates Nayiri K. Pilikyan, Alice S. Kim and Sarah L. Norman, and paralegal Chris Ward.
The case received significant media coverage. In December 2017, the Daily Journal profiled Mr. Richmond, noting that this was his first time defending criminal charges.
The publication also covered opening and closing arguments, reporting on Mr. Richmond’s statements to the jury that Mr. Canterberry was “a brave man who attempted to help a friend by jumping into a brawl” and who acted in self-defense when he collided with another man running directly at him. The Daily Journal also reported that a second defendant, now facing a separate murder trial for his role in the fight, then stomped on the head of the man, who later died.
A separate article about the verdict quoted Mr. Richmond on the differences between trying a criminal case and his primary practice handling large and complex commercial disputes.
“I have a new appreciation for lawyers and judges who devote their careers to criminal cases,” Mr. Richmond said. “Although we’ve handled trials with hundreds of millions of dollars in play, the stakes feel different when you are entrusted to hold someone’s fate in your hands.”
US Supreme Court to Hear Pro Bono Client’s Dispute over Social Security Benefits
The Court recently granted the firm’s petition for certiorari in Biestek v. Berryhill. The firm represents petitioner Michael Biestek, who applied for Social Security benefits because of a disabling, physical impairment. During a hearing before an administrative law judge, a vocational expert testified that jobs were available to Mr. Biestek despite his disability. But the vocational expert, citing the “confidentiality” of her files, would not produce the data and analyses underlying her conclusions. The administrative law judge refused to require the expert to produce this information and then denied Mr. Biestek the disability benefits. The Sixth Circuit affirmed the administrative law judge but noted that there is a divide between the Seventh Circuit and other circuits on the issue.
“This case presents the question whether the Social Security Administration may permissibly deny benefits based on only a vocational expert’s testimony that ‘other work’ exists, when the vocational expert refuses to disclose the data underlying that testimony. There is a well-established, and entrenched, conflict among the circuits on this question, and this case presents the ideal vehicle for this Court to resolve the issue,” according to the petition.
Partner Ishan K. Bhabha leads the team representing Mr. Biestek. Associates Lauren J. Hartz and Natacha Y. Lam are also on the team.