Second Circuit Rules in Favor of Firm’s Investigative Journalist Client Seeking DEA Video
Jenner & Block is proud of its 2018 pro bono results:
A Jenner & Block team secured an important appellate win in a long-running pro bono Freedom of Information Act (FOIA) matter.
In August 2012, investigative journalist Mattathias Schwartz filed a FOIA request with the US Drug Enforcement Administration (DEA), seeking video footage of a May 2012 DEA operation in rural Honduras that resulted in the shooting deaths of four Honduran civilians. The DEA refused to release the video, claiming it was exempt from disclosure under FOIA because it would reveal law enforcement “techniques or procedures.”
In September 2013, a firm team filed suit against the DEA on behalf of Mr. Schwartz, and in January 2016 – after multiple rounds of briefing, two rounds of oral argument, numerous additional submissions, and in camera review of the video – Judge Carol Bagley Amon of the Eastern District of New York granted summary judgment in Mr. Schwartz’s favor and directed the DEA to release the video to him. The DEA appealed.
On April 6, 2017, Associate Carl N. Wedoff presented oral argument to the Second Circuit, and on June 6, the appellate court affirmed the district court. It concluded that the alleged law enforcement techniques and procedures DEA relied on to withhold the video (i) are disclosed in publicly available materials, (ii) are not disclosed by the video, or (iii) are not law enforcement techniques or procedures at all, but rather are only the circumstances in which publicly known techniques and procedures were employed.
In addition to Mr. Wedoff, the team consisted of Partner Brian J. Fischer, Associate Brittany R. Lamb and Summer Associate Alexandra Bursak, with help from Law Clerk Nicole Taykhman, Paralegal Amanda E. Factor and New York Office Managing Clerk Na’eem A. Conway.
11 Lawyers Receive Firm Awards for Exceptional Pro Bono and Mentoring Efforts
Partner Erica Ross and Associates Daniel A. Epstein and Alan J. Iverson were presented with the Albert E. Jenner Pro Bono Award, which recognizes firm lawyers who have provided exceptional legal services to the under-resourced.
Partner Robert L. Graham, who recently retired, received the inaugural Robert L. Graham Mentor Award in recognition of his commitment to mentoring younger lawyers throughout his 45 years at the firm.
The Associates Committee Mentorship Awards went to Partners Amy M. Gallegos, Erin R. Schrantz andformer Partner Leah J. Tulin; Special Counsel James S. Woolrich and Associates Jonathan A. Beitner, Hannah K. Costigan Cowles and David B. Diesenhouse.
Albert E. Jenner Pro Bono Award
Ms. Ross was noted for her exceptional work focusing on appeals in state and federal appellate courts and the US Supreme Court. In 2015, Ms. Ross took on a pro bono appeal challenging an Illinois Medicaid policy that was said to be “the most complex regulatory scheme ever seen in a pro bono appeal” by one of her nominators. Ms. Ross briefed and argued the case at the Seventh Circuit, winning a remand.
Mr. Epstein was recognized for his devotion of more than 1,500 hours of pro bono work since arriving at the firm in 2015. He has represented clients in a variety of cases, including winning emergency and plenary orders of protection for a domestic violence victim; researching and drafting a brief and mooting a partner who was presenting oral argument to the Supreme Court in a habeas case in which the Court favorably ruled that its grant of certiorari had been “improvidently granted,” ultimately leading to the clients’ release from prison; achieving a favorable plea deal for a homeless man accused of attempted murder; and writing a merits brief and drafting a petition for rehearing and rehearing en banc in the Seventh Circuit in a denial of a habeas petition.
Mr. Iverson was honored for his impressive work on asylum and immigration cases. As a second year associate, he has successfully first-chaired a challenging asylum case and has helped bring about several; wins in cases involving gang-based and domestic violence claims – both developing areas of law that can present difficult issues of proof.
Named for one of the firm’s name partners, the Albert E. Jenner Award has been presented annually since 2001. Each winner receives $5,000 that they may donate to the charity or charities of their choice.
Robert L. Graham Mentor Award
The Robert L. Graham award, named for Jenner & Block’s long-time partner and former managing partner, will be awarded annually to firm lawyers who exemplify Mr. Graham’s dedication to mentorship, the public good and the highest ideals of the legal profession. Throughout his tenure at the firm, Mr. Graham took seriously the responsibility of passing on the culture of the firm to younger lawyers. He shared his belief that the law is a profession and not just a business and that lawyers must always maintain professionalism, specifically, being involved in the organized bar and in the community, representing the underrepresented and underprivileged, treating opposing counsel and parties with respect and civility while fighting for clients and being a part of a diverse firm where people can express different views and still come together.
Team Wins Asylum for Honduran Woman and Her Son
On May 22, 2017, a team led by Jenner & Block Associate Jonathan A. Enfield and Discovery Attorney Pedro I. Fernandez, supervised by Partner Gabrielle Sigel, won asylum for a Honduran woman and her young son who had fled from their home to escape the woman’s extremely abusive husband.
Mr. Enfield prepared a well-written and comprehensive legal brief. He and Mr. Fernandez tracked down witnesses in Honduras who were willing to testify, and Mr. Enfield lined up an expert on Honduran violence and police disinterest to testify at the hearing. Neighbors who could hear the violence and see its aftereffects never helped; police “took a report” but did not attempt to protect her when she went to the police with obvious injuries.
At the evidentiary hearing in the US Immigration Court, Mr. Enfield put on a compelling direct examination of the client. After the government conducted its cross, the judge announced that she did not need to hear redirect examination and that, based on the team’s brief, written declarations and exhibits and the client’s testimony, the judge was granting asylum to her and derivatively to her son. The government waived any right to appeal the decision.
Senior Paralegal Debra E. Abelson, Legal Secretary April Thomas and Case Assistant Annette M. Young provided invaluable assistance to the team (the judge commented on how well the briefs and exhibits were prepared for filing and use at the hearing). Associates Daniel W. Bobier and Alan J. Iverson and Staff Attorney Leonardo Morales helped moot a bilingual examination of the clients. Discovery Attorney J. David Pedraza provided key document translations, and the team appreciated the advice and support of Partners Michele L. Slachetka and Wade A. Thomson and of the National Immigrant Justice Center.
Jenner & Block Receives Lex Mundi Pro Bono Foundation Award
Jenner & Block was recently selected by the Lex Mundi Pro Bono Foundation as one of only four firms worldwide – and the sole North American firm – to receive the 2017 Lex Mundi Pro Bono Foundation Award. This award is presented annually to honor Lex Mundi member firms that have provided critical pro bono legal services that help strengthen the global rule of law and improve the lives of the world’s poor and disenfranchised.
The award was presented at Lex Mundi’s annual meeting in Prague on April 27, 2017. Partner John H. Mathias, Jr. accepted on behalf of the firm.
In recognizing the winning firms, Lex Mundi Pro Bono Foundation Managing Director Chloe Holderness said, “The honorees demonstrate how members of the Lex Mundi network are using their pro bono resources of time and expertise to have a tremendous impact on many of the world’s leading social entrepreneurs. The recipients also represent how our member firms, as leading law firms in their jurisdictions, have a larger commitment to growing and strengthening the global pro bono culture.”
As an example of Jenner & Block’s exceptional pro bono contributions, Lex Mundi highlighted the firm’s work in support of the African Leadership Academy (ALA). This South African-based foundation was established in 2004 with the philosophy that a new generation of ethical, committed leaders would be the key to Africa’s development. It educates children at a Johannesburg campus and also provides scholarships to some of these children to pursue university degrees in North America.
ALA is undertaking a five-year plan for growth, partly funded by a loan from OPIC (Overseas Private Investment Corporation), a US federal governmental agency that provides loans typically in circumstances where borrowers have limited access to capital in local markets. Partners Neil Cummings and Geoffrey M. Davis and Associate Rafi W. Mottahedeh assisted ALA in connection with obtaining this loan, including providing tax advice on the deal and follow-up work.
The Lex Mundi Pro Bono Foundation is the nonprofit affiliate of Lex Mundi, the world's leading association of independent law firms. Lex Mundi member law firms are located throughout Europe, the Middle East, Africa, Asia and the Pacific, Latin America, the Caribbean and North America. Each member firm is selected on the basis of its leadership in its local market. Firms must maintain their level of excellence to retain membership within the Lex Mundi network. Since Jenner & Block became Lex Mundi’s Illinois member law firm in 2013, the firm has handled approximately 15 matters through the Lex Mundi Pro Bono Foundation. The majority of these have been transactional matters.
Team Secures Victory for Pro Bono Client Joseph Wang when Judge Reduces Life Sentence
On May 15, 2017, the firm secured a significant win on behalf of pro bono client Joseph Wang. In 1989, at the age of 17, Mr. Wang participated in two murders as a member of the Green Dragons gang. Mr. Wang was subsequently convicted and sentenced to a mandatory term of life imprisonment without the possibility of parole for his role in those crimes.
Beginning from the time of his conviction in 1991, Mr. Wang made every effort to reform himself while in prison. Despite having no hope of ever leaving prison, Mr. Wang obtained his GED, became a passionate painter, and engaged in numerous opportunities to contribute positively to his prison community (such as by teaching courses in painting and ceramics and creating a Buddhism program for other inmates) as well as those less fortunate outside of prison (such as by creating artwork for children with cancer). Most notably, from the time of his conviction 26 years ago until today, Mr. Wang has not had a single disciplinary incident while in prison.
In 2012, the Supreme Court ruled in Miller v. Alabama that mandatory life-without-parole sentences for juveniles are unconstitutional, and subsequently mandated that inmates previously sentenced to such terms for crimes they committed as juveniles must be afforded a resentencing opportunity. A firm team led by Partner Michael W. Ross successfully sought habeas relief for Mr. Wang, and, last August, Judge Dora L. Irizarry of the Eastern District of New York granted Mr. Wang’s habeas petition and set a schedule for resentencing.
Mr. Wang’s resentencing proceeding was held this past Monday. Citing the substantial evidence that Mr. Wang had “made a choice to be better,” as demonstrated by his spotless disciplinary record while incarcerated, his volunteer work and his obvious rehabilitation, Judge Irizarry resentenced Mr. Wang to a term of 30 years’ imprisonment. Because of the substantial good-time credit that Mr. Wang has earned over the past 26 years, it is expected that he will be released in no more than a few months.
News of the resentencing has been covered by the NY Daily News and the New York Post. In a statement provided to the NY Daily News, Michael said that Judge Irizarry’s reduced sentence “recognizes that juveniles who commit even heinous crimes are capable of changing. Mr. Wang’s case exemplifies that constitutional principal.”
Additional members of the team included Associates Caroline DeCell and Justin O. Spiegel and Law Clerk Stephanie Krent. Partners Anthony S. Barkow and Brian J. Fischer also provided key support and guidance.
Firm Wins Victory for Pro Bono Client Aaron Isby
Partner Ishan K. Bhabha won a significant pro bono victory on behalf of Aaron Isby, a federal inmate who has been housed in solitary confinement for more than 10 years, when the Seventh Circuit Court of Appeals reversed summary judgement on Mr. Isby’s due process claim challenging his prolonged placement in isolation and remanded the case for further proceedings in the district court.
Mr. Isby was convicted of robbery resulting in serious bodily injury in 1989 and was incarcerated at a correctional facility in Indiana. After a violent altercation during a cell extraction, Mr. Isby was convicted of two counts of attempted murder and battery, sentenced to 40 additional years in prison and placed in solitary confinement in 1990. In 2006, Mr. Isby was transferred to a new correctional facility; weeks after his arrival, he was moved to solitary confinement where he has remained since. He is confined in his cell for 23 hours per day, eats all meals alone, and has essentially no human contact. Inmates placed in isolation have their placements reviewed every 30 or 90 days to determine if continued placement is necessary. In the 10 years that Mr. Isby has been in solitary confinement, he has received the same two-sentence reasoning for his continued placement in isolation at every review – “Your status has been reviewed and there are no changes recommended to the Southern Regional Director at this time. Your current Department‐ wide Administrative segregation status shall remain in effect unless otherwise rescinded by the Southern Regional Director.”
Mr. Isby filed suit against various prison employees, claiming his prolonged placement in solitary confinement violated his Eighth Amendment protections against cruel and unusual punishment and his Fourteenth Amendment rights under the Due Process Clause. On May 10, the Seventh Circuit affirmed the district court’s decision that his isolation did not constitute an Eighth Amendment violation as there was “no evidence of serious, physical, mental or psychological harm to Isby,” but the court reversed summary judgment on Mr. Isby’s due process claims. Given his lack of disciplinary problems for long stretches of time and the conflicting reasons for his segregation, the court found that there was a genuine dispute of fact as to whether the reviews of his confinement were meaningful, non-pretextual and meet constitutional due process standards.
Partner Barry Levenstam worked with Ishan on the brief; Senior Paralegal Cheryl Olson and Paralegal Mary Frances Patston provided invaluable assistance.