Amicus Brief Urges Ohio Supreme Court to Hear Appeal in High-Profile Case about First Amendment Protections
Our Pro Bono Commitment
Jenner & Block filed an amicus brief on behalf of the NAACP and the Ohio State Chapter of the NAACP urging the Ohio Supreme Court to hear Oberlin College’s appeal in Gibson Bros, Inc., et al., v. Oberlin.
Oberlin is seeking to reverse a lower court decision finding the college liable for more than $30 million in damages for allegedly facilitating the distribution of defamatory statements during student protests against a local bakery.
Oberlin students were protesting Gibson’s bakery after a 2016 incident involving an altercation between three Black Oberlin students and an employee of the bakery. The three students were arrested, but not the employee. Oberlin students organized a boycott of Gibson’s bakery to protest, among other things, the use of force against a Black student, the law enforcement response, and other accounts of racial profiling and discrimination involving the bakery. Student activists created fliers expressing outrage over the “assault” and the bakery’s “long account of racial profiling,” and the Student Senate passed a resolution expressing similar sentiments.
Gibson’s sued Oberlin, asserting that the college and its personnel facilitated the distribution of defamatory statements during the protests. The trial court found that, although the students’ chants were constitutionally protected, Oberlin could be liable for supporting the distribution of the allegedly defamatory statements in the flier.
Oberlin has petitioned the Ohio Supreme Court to reverse this ruling and find that those statements fall within the free speech and association protections guaranteed by the First Amendment and the Ohio Constitution.
Jenner & Block’s brief supports Oberlin’s appeal, based on the important constitutional protections that are threatened by the lower court decisions. The brief outlines the historical development of First Amendment principles protecting free speech and political expression, driven by the crucial role that boycott and protest played during the civil rights movement. This history also demonstrates the importance of student organizing, in particular in opposing discriminatory practices or actions taken by private businesses. The brief also notes that civil tort liability has historically been wielded as a weapon by opponents of civil rights to stifle and suppress essential political organizing and alerts the court to the grave implications of this decision.
Partner Jessica Ring Amunson led the team, joined by Partner Ishan K. Bhabha, Associate Deanna Krokos, Senior Paralegal Cheryl Olson, and Manager of Docketing Services Tyler Edwards.
Appeal Successfully Reversed for Kosovan Refugee
Jenner & Block represented a man who had entered the United States from Kosovo as a refugee when he was very young, with no memory of living there; nor does he speak the language. Unfortunately, our client later developed a substance abuse problem and was arrested for some minor crimes, including a drug charge – which is a removable offense – that made him inadmissible for legal permanent residence.
Third Circuit Supports Pro Bono Client’s Request for Protection from Deportation
At his hearing before the Immigration Judge (IJ), our client sought a waiver of inadmissibility on humanitarian grounds and petitioned for an adjustment of status to legal permanent resident. He arranged to have family members testify about his importance to them and also prepared to introduce evidence about the poor conditions in Kosovo.
After our client’s own testimony and cross-examination, however, the IJ said that he did not need to hear anything else and was prepared to rule. The IJ then asked the U.S. government whether it had anything else to say, and the government lawyer said no. The IJ granted our client a waiver and adjustment of status; the government appealed the decision.
On appeal, the Board of Immigration Appeals (BIA) held that our client’s negative equities outweighed the positive and reversed the waiver. At that point Jenner & Block became involved, on referral from the National Immigrant Justice Center, and the firm appealed to the Seventh Circuit.
In cases such as this, the BIA has unreviewable discretion to reweigh positive and negative equities. No deference is owed to the IJ. Thus, the firm team had to argue that the BIA had committed a legal error not just that it mis-weighed the evidence.
Jenner & Block Associate Illyana A. Green provided critical advocacy, ultimately arguing that our client had been whipsawed by the government, which had not filed a prehearing statement, and although it vigorously cross-examined our client about his criminal record, the government had made no argument at the hearing. Ms. Green argued that the government had preserved no issue for appeal, and our client was prejudiced because of the unusual posture of the case before the IJ: Had the government made any argument at the hearing, our client could have insisted on presenting his evidence to make a full record. The court agreed with the argument and reversed the BIA’s decision.
Although the court attempted to write the decision narrowly, it may have a significant impact on how immigration hearings are conducted. The government rarely files pre-hearing statements due to the volume of immigration cases on their docket. To protect its ability to appeal, the government will be forced by this decision to spend more time getting ready for hearings.
In the meantime, our client was deported to Kosovo, where he has faced homelessness and other challenges. We are hopeful that this positive decision will enable our client to return to the United States. The government will need to bring him back, and on remand, it will be difficult for the government to maintain an appeal, given the Seventh Circuit’s holding.
Others on the firm team for this matter included Partner Matthew E. Price who supervised Ms. Green, with support from paralegal Mary Frances Patston.
Yemeni client Adel Ghanem presented evidence that “overwhelmingly demonstrates” his prior persecution on account of his political opinion, and that if he were returned to Yemen he would likely be tortured, a Third Circuit panel said in September.
In the opinion, the court vacated a Board of Immigration Appeals' decision that denied Mr. Ghanem’s request for protection from deportation, saying the board “ignore[d] overwhelming evidence" that he had been persecuted and would likely be tortured for his political beliefs if returned to Yemen.
News of the decision was reported by Bloomberg and Law360.
Associate William R. Weaver represented Mr. Ghanem. He was supervised by Partners Ian Heath Gershengorn and Matthew E. Price.
Court Approves DPA for Pro Bono Client
Jenner & Block secured a deferred prosecution agreement for pro bono client Pheerayuth Burden, who had been convicted of violating the Arms Export Control Act by sending gun parts to Thailand without a license. At trial, the main testimony against Mr. Burden came in by deposition because the cooperating witness was unavailable to testify live. The firm took the case on appeal to the DC Circuit, arguing that the introduction of the deposition evidence violated Mr. Burden’s Sixth Amendment right to confront witnesses against him; we argued that the witness’s unavailability could not excuse the violation because the government itself procured that unavailability by deporting the cooperating witness before trial without making any plans to bring him back. The DC Circuit agreed and vacated Mr. Burden’s conviction, remanding for a new trial.
On remand, the firm team successfully negotiated a deferred prosecution agreement that will allow Mr. Burden to be free from burdensome pretrial release conditions and will ultimately allow for dismissal of the charges with prejudice.
The team was led by Partner Lindsay C. Harrison, with critical support from Partner David Bitkower.
Jenner & Block Amicus Brief Urges US Supreme Court to Strike Down Mississippi’s Abortion Ban
A Jenner & Block team has filed an amicus brief in Dobbs v. Jackson Women’s Health Organization, the US Supreme Court case considering a Mississippi law banning abortion after 15 weeks of pregnancy. The brief urges the Supreme Court to affirm a lower court’s decision and strike down the law.
The brief was written pro bono on behalf of reproductive justice advocates and organizers. It focuses on the impact that Mississippi’s law would have on people of color as well as disabled, low-income, Indigenous, and LGBTQ+ people living in Mississippi and Louisiana.
“Amici have a unique window into the challenges people face when seeking to access abortion, and the additional barriers Mississippi’s 15-week ban will impose on marginalized people. They write to highlight the devastating consequences that will ensue if this Court eliminates the right to abortion,” reads the brief.
Partner Tassity S. Johnson and Associate Victoria Hall-Palerm wrote the brief. Partner Jessica Ring Amunson assisted.
Former Pro Bono Client Juan Rivera opens Barber College with Former Prison Guard
The firm represented Juan Rivera in the third retrial of charges for the 1992 rape and murder of an 11-year-old girl. That trial resulted in conviction, and the firm assisted Stanford Law School Professor Lawrence Marshall, former director of Northwestern University Pritzker School of Law’s Bluhm Legal Clinic Center on Wrongful Convictions, who briefed and argued Mr. Rivera’s appeal from that conviction.
In 2011, a unanimous three-judge panel of the Illinois Appellate Court for the Second District reversed Mr. Rivera’s conviction, finding insufficient evidence to support his conviction in light of the DNA evidence excluding him as the perpetrator. Years later, in 2014, authorities announced that DNA evidence from the case matched a potential suspect in a separate murder.
Earlier this year, Mr. Rivera opened Legacy Barber College, 1546 W. Howard in Chicago, with his former prison guard, Bobby Mattison. According to an article in the 49th Ward newsletter, Mr. Rivera “returned to his roots in Rogers Park to make good on a promise he struck in prison with a guard: to give back by helping youth in underserved communities carve a path towards a successful career.”
The barbershop has partnered with Evanston Township High School and Oakton Community College in Des Plaines to offer alternative programs and college credits. The program also offers education on financial literacy, customer service, and how to run a business.
In addition to working with Professor Marshall, the firm partnered with the Bluhm Legal Clinic Center on Wrongful Convictions on the case. The firm team included Partners Thomas Sullivan, Terri Mascherin and Andrew Vail.
In this video, Ms. Mascherin discusses the case.
Vindicating the Rights of Guantánamo Bay Defense Lawyers
When two civilian lawyers attempted to resign as counsel to a Guantánamo Bay detainee on ethical grounds, they were threatened with arrest to force them to defend their client.
In this video, hear from members of the cross-office Jenner & Block team about their work ensuring the defense lawyers’ right to resign from the case without arrest..
Read more about the case in The Heart of the Matter.
Firm Wins Illinois Appellate Victory for Pro Bono Client in Car Insurance Dispute
A team represented Robert Nixon, a 72-year-old veteran. At issue in the long-running case was Mr. Nixon’s auto insurance policy, which the insurance company refused to honor after he was involved in an accident.
In 2014, Mr. Nixon purchased a used car and acquired an auto insurance policy from Direct Auto Insurance Company. When Mr. Nixon was in an accident a few months later, Direct Auto refused to cover him and rescinded his policy, claiming that Mr. Nixon had lied on his insurance application because he had not listed his cousins as members of his “household.” Because Direct Auto refused to defend Mr. Nixon’s insurance claim, a lawsuit by the other driver in the accident resulted in a default judgment against Mr. Nixon, as well as suspension of his driver’s license for driving without insurance.
Direct Auto sued Mr. Nixon in the Circuit Court of Cook County, seeking a declaratory judgment that it was not obligated to indemnify him in light of its rescission. Mr. Nixon retained the pro bono assistance of another law firm, who took to the case to trial in the Circuit Court of Cook County. After a bench trial, the Circuit Court ruled for Mr. Nixon, holding that Direct Auto was obligated to indemnify him for the accident. The circuit court also held that Mr. Nixon had not lied on his application and that Direct Auto had deliberately made its application confusing and misleading. The circuit court held that Direct Auto’s rescission of the policy was “vexatious and unreasonable” and imposed the maximum allowable sanction under the Illinois Insurance Code, awarding an additional $60,000 to Mr. Nixon.
Direct Auto appealed, and the firm stepped in to represent Mr. Nixon. On September 30, 2019, the Illinois Appellate Court affirmed the judgment for Mr. Nixon. The appellate court agreed with the firm that even if Mr. Nixon’s cousins were members of his household (which they were not), that purported misrepresentation would have been immaterial and would not have justified rescission of the policy. The time for Direct Auto to appeal to the Illinois Supreme Court
elapsed on January 8, 2020.
Associate Leigh J. Jahnig drafted the response brief, with assistance from Associate Nathaniel K.S. Wackman. Partners John Mathias, Jr., and David M. Kroeger supervised the drafting. Paralegal Mary Patston provided invaluable assistance.
Fourth Circuit Revives Maryland-Based Census Suit
The firm secured a pro bono victory on behalf of the National Association for the Advancement of Colored People (NAACP), Prince George’s County, Maryland, and other plaintiffs that are challenging the federal government’s plans for the 2020 Census. Co-counsel with the Rule of Law Clinic at Yale Law School, the firm argues that the Bureau’s deficient plans will lead to an undercount of communities of color, leading to inequities in political representation and federal funding.
Originally filed in 2018, NAACP et al. v. Bureau of the Census was dismissed in 2019 at the district court level. On December 19, 2019, the Fourth Circuit reinstated the suit, remanding it back to the district court to reconsider the plaintiffs’ Enumeration Clause claims. The unanimous three-judge panel concluded that the district court “erred in dismissing the plaintiffs’ Enumeration Clause claims as unripe, and in precluding the plaintiffs from filing an amended complaint regarding those claims after the defendants’ plans for the 2020 Census became final.”
Partner Jessica Ring Amunson argued the appeal with a student from the Yale Law Clinic. The team also includes Partners Susan Kohlmann, Jeremy Creelan and Michael Ross; Special Counsel Seth Agata; Associates Jacob Alderdice, Amy Egerton-Wiley, Logan Gowdey, Alex Trepp, Matthew Phillips, Keturah James and David Clark; Law Clerk Andrew Whinery; and Paralegal Esmeralda Bako.
“This decision gets us closer to a more just 2020 Census and shines a light on the critical issues at stake in the decennial census,” Ms. Amunson said in a press release about the decision.
At the NAACP’s annual meeting in July 2019, the organization honored the team with its “Foot Soldier in the Sand Award” for its efforts in the case.
The NAACP suit is the second suit the firm has filed, pro bono, seeking to ensure that the census adequately counts hard-to-count populations. The firm also represents the Center for Popular Democracy Action and the city of Newburgh, New York, in a suit that seeks an injunction that would require the government to implement a plan to ensure that hard-to-count populations will be enumerated. Filed in November 2019, Center for Popular Democracy Action and City of Newburgh v. Bureau of the Census is pending.
Firm Secures DC Circuit Decision Overturning Convictions on 6th Amendment Grounds
A Jenner & Block team of Partner Lindsay C. Harrison and Associate James T. Dawson succeeded in persuading the D.C. Circuit to overturn the convictions of pro bono client Pheerayuth Burden and his export business, Wing-On LLC. Mr. Burden was charged with exporting gun parts without a license in violation of the Arms Export Control Act (AECA). At trial, the testimony of a key prosecutorial witness was admitted through videotaped deposition; he was unavailable for questioning becausethe US government had deported him prior to the trial. The firm argued that the admission of the deposition constituted a violation of the 6th Amendment, which guarantees the right of the defendants to confront the witnesses against them at trial. On August 20, the US Court of Appeals for the DC Circuit agreed, ruling that “the district court erred in admitting the deposition testimony” and vacating all charges. The firm also won a second issue related to the jury instructions for a willful violation of the AECA, which criminalizes willful violations of the International Traffic in Arms Regulations (ITAR).
Firm Wins Significant DC Circuit Ruling in Guantanamo Defense Lawyers’ Case
A firm team obtained a significant win for two civilian lawyers who resigned from serving as counsel to Abd al-Rahim Hussein Muhammad al-Nashiri, the alleged mastermind of the attack on the United States Navy destroyer USS Cole who is facing a military trial at Guantánamo Bay.
The civilian lawyers resigned after discovering various intrusions into the attorney-client privilege, including finding surveillance equipment in a client meeting room.
On Tuesday, April 16, the US Court of Appeals for the District of Columbia issued a decision vacating all rulings from Air Force Colonel Vance Spath, the now-retired military judge overseeing the case, dating back to 2015 in the trial of Mr. Nashiri. Among those rulings were orders preventing the Pentagon-paid civilian defense lawyers, Mary Spears and Rosa Eliades, from resigning.
In October 2017, the chief defense counsel for Military Commissions at Guantánamo Bay, Marine Corps General John Baker, excused Ms. Spears and Ms. Eliades as counsel for Mr. Nashiri. Judge Spath disagreed with that decision, eventually confining General Baker to quarters and ordering Ms. Spears and Ms. Eliades to continue to serve, threatening them with arrest. Judge Spath eventually abated the case to put it on an indefinite hold.
At issue in the January 2019 arguments before the DC Circuit was General Baker’s authority to dismiss the civilian lawyers. In a related case argued during the same hearing, a defense attorney for Mr. Nashiri urged the DC Circuit to toss all of Judge Spath’s rulings, as the judge was seeking a position with the US Department of Justice as an immigration judge while issuing rulings in the military court case prosecuted by the DOJ.
The Court found that his efforts to be hired by the same agency currently appearing before him in court was “impermissible.”
“Spath’s job application, therefore, cast an intolerable cloud of partiality over his subsequent judicial conduct,” the justices note in the opinion vacating Judge Spath’s orders.
The legal proceedings involving Ms. Spears and Ms. Eliades have been complex and involved numerous government branches and court jurisdictions. Please click here for more information about the background of the case.
Partner Todd C. Toral, who led the firm team handling the case, represented Ms. Spears and Ms. Eliades in the military proceedings at Guantánamo Bay and in the US Court of Military Commission (CMCR). Partner Matthew S. Hellman argued the case in front of the DC Circuit. The Jenner & Block team includes Partners Brandon D. Fox and Keisha N. Stanford and Associates Alice S. Kim and Eric Lamm. Partners Gabriel A. Fuentes and Luke C. Platzer are also providing support. Partners Adam G. Unikowsky and Ishan K. Bhabha and Associates Lauren J. Hartz, Andrew C. Noll and Tassity Johnson assisted with moot arguments. Cheryl Olson provided paralegal support, Tyler Edwards provided docketing support, and Beth Gulden provided administrative assistance.
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.
Firm’s Pro Bono Client Featured in Four-Part Sun Times Series
Jesse Webster, the firm’s pro bono client who was granted executive clemency after serving 20 years of a life sentence on charges related to conspiracy to distribute cocaine, is the subject of a four-part series by Chicago Sun Times columnist Mary Mitchell. The series chronicles Mr. Webster’s run-in with the law at age 26 and how he had been in prison for 14 years and lost several appeals when he “crossed paths” with Partner Jessica Ring Amunson. A federal appeals court appointed the firm in 2009 to represent Webster in his last, and final, appeal. Ms. Amunson is photographed and quoted throughout the series, telling Ms. Mitchell that, “I was honest about how much odds were against” clemency. “But I decided to take on his clemency case because I could not understand why someone like Jesse would be spending the rest of his life in jail for a non-violent drug offense. It just made no sense to me that our criminal justice system would work that way.”
On March 30, 2016, President Obama granted executive clemency to Mr. Webster and 60 other individuals “serving years in prison under outdated and unduly harsh sentencing laws,” according to the White House. The series tells of Mr. Webster’s work to re-integrate himself in society since his release, including getting a job at Catholic Charities. It also describes Mr. Webster’s first face-to-face meeting with Ms. Amunson, in October at a restaurant in downtown Chicago. “It wasn’t like I was meeting her for the first time,” Mr. Webster says. “I felt like I knew her.” Ms. Amunson is quoted saying, “It was a pretty amazing thing to be a part of helping someone spend the rest of their life with their family, rather than spending the rest of their life in prison.”
In addition to Ms. Amunson, Partner Barry Levenstam and Associate Caroline DeCell worked on the case. The team’s efforts included petitioning Capitol Hill and sharing Mr. Webster’s story with major media outlets such as the New York Times. Ms. Mitchell also wrote several columns about Mr. Webster in the past and published Mr. Webster’s open letter to youth. “It took a lot of caring people to get Webster back home safely,” the series concludes. “Without them, he would still be wasting away behind bars.”