Patrick Pursley Acquitted after 25 Years Based on Precedent-Setting New Ballistics Evidence
Jenner & Block is proud of its 2018 pro bono results:
A Jenner & Block team secured a significant victory on behalf of pro bono client Patrick Pursley. On January 16, 2019, Mr. Pursley was found not guilty of the 1993 first-degree murder of Andy Ascher in a retrial before Illinois Circuit Judge Joseph McGraw.
Mr. Pursley was originally convicted in a 1994 jury trial in which the state relied heavily on the testimony of a state ballistics examiner that a firearm attributed to Mr. Pursley fired the bullets and cartridge cases found at the crime scene. Although Mr. Pursley maintained his innocence and sought post-conviction ballistics testing, Illinois law did not provide for this type of testing at the time, and his request was denied. However, Mr. Pursley persisted. While in prison, Mr. Pursley wrote an article stating that the law should keep up with technology and allow for ballistics testing in post-conviction settings just as it did at the time with DNA. After lobbying efforts on Pursley’s behalf, the Illinois legislature amended the law in 2007 to provide for post-conviction ballistics testing.
In October 2008, at the request of Northwestern’s Center on Wrongful Convictions, the firm agreed to assist Mr. Pursley in his effort to get the state of Illinois to retest the ballistics evidence. On January 26, 2011, the Illinois Appellate Court, reversing a decision by the lower court, granted his request, making People v. Pursley the first case in the country to allow a prisoner new ballistics testing under a Post-Conviction Testing Act.
The firm then submitted the ballistics evidence to two preeminent and independent ballistics specialists who examined the evidence using new technology and concluded that Mr. Pursley’s firearm did not fire either of the bullets or either of the cartridge cases found at the crime scene. In December 2016, Judge McGraw of the Winnebago (IL) County Circuit Court held a three-day evidentiary hearing on this evidence, and on March 3, 2017 he vacated Pursley’s conviction and awarded him a new trial. At that time, Mr. Pursley was released on bond after spending more than 23 years in prison.
The state then appealed Judge McGraw’s decision, to no avail.
On January 10, Mr. Pursley’s retrial began in Winnebago County, with closing arguments heard on January 15. On January 16, Judge McGraw announced his decision to acquit Mr. Pursley, stating that the “evidence in 1993 was scant by today’s standards, and when you start with scant evidence you’re not in a good position to reevaluate it years later.” He further commented that the defense’s ballistics experts demonstrated conclusively that the cartridge cases were not fired from the gun attributed to Mr. Pursley.
For more than a decade, a diverse team of lawyers has been dedicated to overturning this wrongful conviction. Partners Robert R. Stauffer and Andrew W. Vail and Associates Kevin J. Murphy and Monika N. Kothari led significant aspects of the case. . Associate Sara Kim and paralegals Eric Herling and Nick Perrone provided invaluable assistance before and during trial. Firmwide, more than 60 professionals – from lawyers to paralegals to library services – contributed 9,478 hours to this case over more than a decade.
The case generated significant media attention throughout the years. Various news outlets such as NBC and the Associated Press have reported on the retrial and various pre-trial proceedings. In the past, both The National Law Journal and Law360 pointed to the case when awarding the firm with pro bono recognition.
Firm Wins Victory Before the Fourth Circuit in First Amendment Case about Use of Social Media By Public Officials
The firm secured a victory in a pro bono matter that focused on whether the First Amendment applies to a government official’s Facebook page. At issue in Davison v. Randall was a trial court’s decision regarding whether Phyllis Randall, chair of the Loudoun County Board of Supervisors, violated the First Amendment rights of resident Brian Davison when she banned him from the “Chair Phyllis J. Randall” Facebook page she administered. The trial court ruled that Ms. Randall had unconstitutionally barred Mr. Davison from her Facebook page based on Mr. Davison’s viewpoint, and Ms. Randall appealed.
Partner Jessica Ring Amunson and Associate Tali R. Leinwand represented the Knight First Amendment Institute at Columbia University, which argued on behalf of Mr. Davison.
Mr. Davison had used his personal Facebook page to post comments on Ms. Randall’s Facebook page that criticized the Loudoun Board and Ms. Randall for actions taken in their official capacities. Ms. Randall subsequently deleted Mr. Davison’s posts and banned Mr. Davison’s account from her Facebook page. In November 2016, Mr. Davison filed a complaint against Ms. Randall and the Loudoun board, alleging that Ms. Randall’s decision to ban Mr. Davison for expressing critical speech amounted to “viewpoint discrimination.” Following a one-day bench trial,
the trial court ruled that Ms. Randall had unconstitutionally barred Mr. Davison from her Facebook page based on Mr. Davison’s viewpoint, and Ms. Randall appealed.
On January 7, 2019, the Fourth Circuit held that the Chair’s Facebook page “bear[s] the hallmarks of a legal forum.” “In sum,” wrote Judge James A. Wynn, “the interactive component of the Chair’s Facebook page constituted a public forum, and Randall engaged in unconstitutional viewpoint discrimination when she banned Davison’s [private page] from that forum.”
The Fourth Circuit’s decision marks the first time an appellate court has addressed the applicability of the First Amendment to social media accounts run by government officials. In May 2018, a federal trial court in New York held that President Trump’s blocking of critics on his Twitter page violates the First Amendment. That case, in which the firm serves as co-counsel with the Knight Institute, is currently pending before the Second Circuit.
Arguing for Social Security Benefits for Disabled Client
In December, Partner Ishan K. Bhabha made his first argument before the US Supreme Court. In Biestek v. Berryhill, Mr. Bhabha represents petitioner Michael Biestek, who applied for Social Security benefits because of a disabling, physical impairment.
Watch the video below to learn more about the case.
Click here to listen to the argument.
Seventh Circuit Unanimously Rules Pro Bono Client is Entitled to Evidentiary Hearing
A Jenner & Block team secured a significant win from the Seventh Circuit on behalf of pro bono client Anthony Lee, who has been incarcerated since 1995. On December 21, a panel of judges unanimously ruled Mr. Lee was entitled to an evidentiary hearing on his claim for ineffective assistance of counsel based on his trial counsel’s failure to investigate and call five witnesses at trial.
In 1996, Mr. Lee was convicted of aggravated sexual assault and kidnapping and sentenced to 100 years in prison. The trial had no physical evidence or eyewitness testimonies other than testimony from Mr. Lee and his accuser, L.M. Prior to Mr. Lee’s trial, five potential witnesses submitted affidavits to Mr. Lee’s trial counsel that corroborated Mr. Lee’s testimony and contradicted his accuser’s. However, trial counsel did not call any of the five witnesses to testify at trial and never contacted them.
In 1998, Mr. Lee began pursuing a claim for ineffective assistance of counsel in state court. Although Mr. Lee pleaded a prima facie claim under Strickland v. Washington, 466 U.S. 668 (1984), the state courts rejected his claim without ever granting him an evidentiary hearing on the merits. The state courts reasoned that Mr. Lee suffered no prejudice from trial counsel’s apparent failure to investigate the witnesses because the affidavits did not necessarily demonstrate that the witnesses would have made a difference at trial.
Jenner & Block began representing Mr. Lee in 2013. In 2017, the firm filed a federal habeas petition in the Northern District of Illinois. Although stating that it was a “close call” and “perhaps not the result this Court would reach on a blank slate,” the federal court held that the state courts did not unreasonably apply Strickland, and therefore dismissal was required. The firm filed an appeal to the Seventh Circuit.
On October 22, 2018, Jenner & Block Associate Abraham M. Salander argued the appeal before a panel of judges. Judge Easterbrook led the court’s questioning and focused on whether Mr. Lee’s requests for an evidentiary hearing in state court were sufficiently detailed to entitle him to a hearing in federal court under the federal habeas statute. After oral argument, the court ordered the parties to submit copies of Mr. Lee’s requests for an evidentiary hearing in state court along with the state courts’ rulings on those requests. Jenner & Block submitted a brief supported by 37 documents demonstrating that Mr. Lee’s requests were sufficient under federal law.
On December 21, the Seventh Circuit unanimously ruled Mr. Lee was entitled to an evidentiary hearing because, if the witnesses were called to testify, it was “unlikely” they “would have parroted their affidavits and refused to say another word.” The court specifically praised the firm’s “enthusiasm” and collection of relevant information in response to the court’s post-argument order.
The firm team was led by Partners Bradley M. Yusim and Barry Levenstam, who, along with Paralegal Mary Frances Patston, were on the case since the beginning of the firm’s representation.
Partners Michael T. Brody, Anton R. Valukas, Randall E. Mehrberg and Megan B. Poetzel assisted with oral argument preparation. Partner Jessica Ring Amunson and Associate William L. Von Hoene worked on the case at earlier stages.
Partner Bradford Lyerla Discusses Significance of William J. Hibbler Memorial Pro Se Assistance Program
Jenner & Block Partner Bradford P. Lyerla is quoted in The Circuit Rider regarding his involvement with the William J. Hibbler Memorial Pro Se Assistance Program. The program provides a free help desk for pro se parties in federal civil cases. Most often, the desk’s visitors are plaintiffs in civil rights and employment cases. Volunteer lawyers act as a resource to help analyze claims, draft pleadings, review documents and understand rulings. “Gratitude and service to others are keys to happiness,” Mr. Lyerla tells The Circuit Rider, the journal of the Seventh Circuit Bar Association. “I think the main kick that I get out of Hibbler is that I feel like I am helping real people with real problems. I also like the fact that Hibbler work is under the radar. At my firm, we do a lot of high profile pro bono, and I have done that myself. But Hibbler has no glory attached to it, and at this stage of my life, I prefer personal and low-key pro bono service.” To learn more about the program, contact the Legal Assistance Foundation at 312 229-6060 or visit the LAF online.
Firm Files Amicus Brief Supporting Chicago Museums in Obama Presidential Center Dispute
Jenner & Block filed an amicus brief, pro bono, on behalf of all 11 museums located on Chicago parkland. In Protect Our Parks, Inc. v. Chicago Park District, the plaintiffs allege that creating the Obama Presidential Center in Jackson Park—and allowing the Obama Foundation to operate the Center under an agreement that the Chicago City Council unanimously approved—would violate the Public Trust Doctrine and certain other laws. The City of Chicago and the Chicago Park District moved to dismiss the complaint, arguing that the Obama Center’s creation and operation is consistent with the Public Trust Doctrine and all other federal and state laws. The amici supported that motion by offering their unique insight and perspective. In particular, the museums provided the court with historical context about the long tradition of locating museums in Chicago’s public parks and highlighted the potential practical consequences that may result if the Obama Presidential Center is not allowed to open on parkland.
“The Park Museums believe the Obama Presidential Center will be a cultural and economic treasure for Chicago that will bring new amenities and positive development to the surrounding community, boost the local economy, and serve as a magnet for visitors the City and the region,” the brief says. “It will serve as an enduring and powerful symbol of the promise of America and the American Dream.”
Briefing is currently underway in the district court.
The 11 museums that currently operate on parkland in Chicago include the Adler Planetarium, Art Institute of Chicago, Chicago History Museum, DuSable Museum of African American History, The Field Museum of Natural History, Museum of Contemporary Art, Museum of Science and Industry, National Museum of Mexican Art, National Museum of Puerto Rican Arts and Culture, The Chicago Academy of Sciences/Peggy Notebaert Nature Museum and John G. Shedd Aquarium.
The team authoring the brief includes Litigation Department Chair Craig C. Martin, Partner Daniel J. Weiss and Associates Gabriel K. Gillett and Henry C. Thomas.