Jenner & Block Partner Tassity Johnson Named Rising Star by National Immigrant Justice Center
The National Immigrant Justice Center recognized Partner Tassity S. Johnson among its 2022 Rising Stars. The annual award honors lawyers who have demonstrated extraordinary commitment to ensuring access to justice for immigrants. She is one of nine lawyers recognized this year.
Ms. Johnson has represented asylum seekers pro bono through the NIJC for nearly five years, litigating several complex cases before the US Court of Appeals for the Tenth Circuit during that time.
In a case before the Tenth Circuit, Ms. Johnson and Partner Matthew Price represented a political activist, who fled from the Democratic Republic of Congo to escape persecution by state security forces, in seeking asylum in the US. After Ms. Johnson and Mr. Price filed a brief in the Tenth Circuit on the Board of Immigration Appeals’ erroneous conclusion that their client had firmly resettled in Angola, among other errors, the government voluntarily moved to remand. When the Board denied their client’s asylum application for a second time, Ms. Johnson and Mr. Price again represented their client in the Tenth Circuit and obtained another remand, this time from the Court.
Ms. Johnson, along with Mr. Price and Associate Urja R. Mittal, represented another asylum seeker, who fled Mexico after being kidnapped and violently assaulted for being a transgender woman, before the Board of Immigration Appeals and the Tenth Circuit. Ms. Johnson, Mr. Price, and Ms. Mittal filed a brief in the Tenth Circuit explaining that the Board, in denying their client asylum, had, among other errors, applied a wrongly heightened standard for whether the Mexican government could protect their client from further assault. The government again voluntarily moved to remand. Ms. Johnson is currently representing their client before the Board, where their client’s claim is still pending.
Learn more about this recognition here.
Lawsuit Challenges Unconstitutional Law Limiting Abortion Services
Working in partnership with abortion service providers and civil liberties groups, a Jenner & Block team filed a lawsuit in Florida to block the implementation of a new state law that would ban abortion after 15 weeks of pregnancy and could put doctors in jail for providing essential care beyond that point.
The lawsuit argues that the law, which is set to take effect on July 1, 2022, would limit an individual’s right to access abortion services in violation of the Florida state constitution. It seeks an emergency injunction against the law taking effect.
The Jenner & Block team is led by Partner April Otterberg along with Partners Shoba Pillay and Tassity Johnson and includes Associates Reanne Zheng, Sara M. Crook, Meg Hlousek, Annie K. Schoenfeldt, Emily A. Merrifield, and Savannah E. Berger, and Paralegal Fallon McDowell. Associates Sara M. Stappert, Casey Jedele, and Karolina L. Bartosik provided additional assistance.
Read the ACLU press release here: Florida Health Centers Challenge 15-Week Abortion Ban in State Court | American Civil Liberties Union (aclu.org)
Jenner & Block and Cboe Help Eight People Secure DACA Renewals
Starting in February, lawyers from Jenner & Block and our client Cboe worked together to host a series of clinics aimed at helping individuals renew their status under the federal Deferred Action for Childhood Arrivals (DACA) program. Within two months of the clinics, eight people received their renewals from the United States Citizenship and Immigration Services.
The Jenner & Block lawyers who participated in the clinics include Partners Gregory M. Boyle, Reid J. Schar, Coral A. Negron, Rachel K. Alpert, Michelle M. McAtee, Peter H. Rosenbaum, and Sheila C. Kailus, and Associates Molly J. Piazzi, JX Quek, and Emily A. Merrifield.
Children in Custody at South Carolina Juvenile Justice Centers Held in Nightmarish Conditions, New Lawsuit Alleges
A lawsuit filed in the United States District Court for the District of South Carolina alleges horrific living conditions for the more than 250 children detained by the South Carolina Department of Juvenile Justice, the agency tasked by law with providing South Carolina’s detained children with care and rehabilitation rather than punishment.
Children held in DJJ facilities are routinely subjected to violence, months-long isolation in solitary confinement, and a lack of meaningful educational or mental health services, according to the lawsuit, which was brought on behalf of the South Carolina State Conference of the NAACP, Disability Rights South Carolina, and Justice 360.
“These children are in danger every day and every night, and DJJ has consistently failed to contain the violence,” said Lindsey Vann, Executive Director of Justice 360. “These are systemic problems that need appropriate resources, authority, and support to enact real change.”
According to the lawsuit, there is sewage water in the cells, feces on the walls, and cockroaches in the food of the facilities. The lawsuit alleges that youth-on-youth violence is rampant, with staff often turning a blind eye or even instigating assaults on children. The lawsuit further alleges that DJJ has resorted to 23-hour-a-day solitary confinement as a default management tool to house sick kids, “protect” children from violence, or address even the most minor of infractions.
“South Carolina exposes the children in its juvenile justice system—most of whom are Black—to barbaric conditions,” said Brenda Murphy, President of the NAACP South Carolina State Conference of Branches. “Children in custody suffer from constant violence, are isolated for weeks and months, and are denied the basic rehabilitative services they need and are entitled to. Our most vulnerable children must receive support, not punishment.”
Despite claims that it operates its own accredited school district, helps youth pursue workforce development opportunities, and provides rehabilitative services, most children receive no educational services, according to the lawsuit. The lack of educational resources at DJJ facilities is especially damaging for the children who suffer from learning impairments or physical disabilities, as no special education services are provided, the lawsuit says. One child, who struggles with verbal communication, reported receiving only a single day of education over a period of nine months.
“DJJ holds some of our State’s most traumatized and vulnerable children,” said Allen Chaney, Legal Director for the ACLU of South Carolina. “If conditions don’t immediately and dramatically improve, then the only adequate remedy will be to release children from these horrific conditions.”
The DJJ has a well-documented track record — dating back to the 1960s — of violating the constitutional and statutory rights of the children in its care. Even with decades’ worth of findings and interventions, DJJ has failed to make substantial progress in implementing lasting solutions, the lawsuit says.
“DJJ has been aware of the ongoing violence and unconstitutional conditions at their facilities for years, and yet they still fail to protect the children entrusted to their care,” said Jenner & Block Partner Previn Warren. “Our hope is to create lasting and meaningful reform right away to end the trauma these children are experiencing.”
The lawsuit, filed jointly with the ACLU of South Carolina, the NAACP, and the law firms Wyche and Jenner & Block, asks the court to declare that the department is violating the constitutional rights of South Carolina children and seeks judicial intervention to facilitate immediate remedies such as clean water, dry beds, healthy food, safety from violence, freedom from unconstitutional uses of solitary confinement, meaningful access to education and mental health resources, and accommodations for children with disabilities.
Mr. Warren and Partner Jeremy M. Creelan led this effort and received support from Associates William R. Weaver, Mary E. Marshall, Jessica J. Sawadogo, Jacob D. Alderdice, Jeremy H. Ershow, and Amit B. Patel, and Paralegal Adam H. Weidman.
Partner Andrew Vail Featured in United Way Article Celebrating Volunteering
Jenner & Block Partner Andrew W. Vail, who is the first general counsel of the United Way of Metro Chicago, discusses the importance of volunteering in a United Way article titled “Volunteering: A Labor of the Soul.” The article describes Mr. Vail as a “fierce advocate” for public service and sharing his skills in law. It notes that he is the immediate past chair of the firm’s pro bono program who spearheaded our five-year $250 million commitment to pro bono service. “The need in our community is so great, and volunteering can mean so much, including to those who engage. There is no time better than now to volunteer,” Mr. Vail says.
Guantánamo Detainee Majid Khan Closer to Freedom with Approval of Final Sentence
On March 11, the Convening Authority for the Military Commissions ordered a sentence of 10 years for Jenner & Block client Majid Khan. Applying credit for time served from the date of his guilty plea on February 29, 2012, Mr. Khan's sentence ended on March 1, 2022.
For more than a decade, Co-Managing Partner Katya Jestin has worked with the Center for Constitutional Rights and the Military Commissions Defense Organization to represent Mr. Khan pro bono.
“This is a historic day. Majid has fulfilled his cooperation obligations completely, and his sentence has been served. He must now be released from detention,” Ms. Jestin said in a statement. “Majid’s torture at the hands of the CIA in the name of national security was illegal and a shameful episode in our nation’s history.”
Mr. Khan abandoned involvement with terrorism more than a decade ago and has been providing substantial cooperation to US authorities since then. In response to the Convening Authority’s decision, Mr. Khan’s legal team, including Ms. Jestin, called for his transfer from Guantánamo “without delay.”
“We look forward to working with the Biden administration to ensure that Mr. Khan is promptly and safely resettled in a third country where he can be reunited with his wife and daughter and begin the next chapter of his life,” the team said in a statement.
Pro Bono Client Releases National Report Card on Mental Health Services for Children
For three weeks in December, a team of 26 Jenner & Block lawyers researched the availability of and access to mental health services for children in grades K-12 in 45 different states. Client Inseparable and 16 other organizations joined to form the Hopeful Futures Campaign, which used the data to assess the accessibility of mental health services in all 50 states.
On February 16, 2022, Inseparable released the first national report card that scores every state on policies that support school mental health services, with recommendations for how to improve. The report card was reported by news outlets including MindSightNews, NPR, and USA Today.
The team included Partners Carissa Coze, Alexander M. Smith, and Joseph J. Torres; Special Counsel Danny S. Chami and Emily M. Savner; Associates Karolina L. Bartosik, Sophia L. Cai, Jenna L. Conwisar, Edward Crouse, Allison N. Douglis, Kate E. Fintel, Kevin J. Kennedy, Mary E. Marshall, Lawrence W. McMahon, Eric E. Petry, Annie K. Schoenfeldt, Madeline Skitzki, Tyler G. Westrich, William A. Williams, and Eric W. Wolff; Discovery Attorneys Chuck Downs and Matt Par; and Law Clerks Deanna Krokos, Areeb Salim, Jessica Sawadogo, and Jonathan Steinberg. Legal Assistant Elizabeth Visick assisted, and Partner Gail H. Morse led the project.
Jenner & Block Publishes Annual Report on Pro Bono Service
For more than 20 years, Jenner & Block has been proud to publish an annual report on pro bono service. The Heart of the Matter highlights the work we have done and the pro bono clients we have been privileged to serve in the past year. This report reaffirms that our pro bono work – whether it is advocating for those caught up in the criminal justice system, counseling nonprofits, or supporting those seeking a way out of high-risk areas – can change lives. This year, we also celebrate the dedicated lawyers from our commercial clients who partnered with us on our mission to help those in need.
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.
Jenner & Block Secures Settlement Agreement with NYCHA to Prevent Wrongful Evictions
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.
Along with Legal Service NYC as co-counsel, Jenner & Block secured a settlement with the New York City Housing Authority, requiring the public housing agency to reform its rent adjustment system to prevent wrongful evictions and benefiting more than 400,000 NYCHA residents.
The agreement ensures that thousands of NYCHA tenants will have their rents reduced if their incomes were to decline – a process required by federal law that has become more urgent during the pandemic. The settlement also enhances protections for low-income residents by requiring that NYCHA may not prosecute nonpayment or chronic rent delinquency cases until they first resolve interim rent reduction requests or rent grievances. The settlement comes after a group of twelve families, who have lived in public housing anywhere between five and 50 years, sued NYCHA in federal court alleging illegal rent overcharges above 30% of income and eviction proceedings for unlawful amounts of rent.
NYCHA has agreed to pay tenants close to $190,000 in damages, lawyers’ fees, and rent overcharge claims and has six months to implement changes to its system-wide operations concerning rent readjustments and eviction cases. NYCHA is also subject to monitoring by the federal court for three years.
To learn more about the plaintiffs and the settlement, click here.
The Jenner & Block team included Special Counsel David W. Sussman, Associates Susanna Evarts and Olivia Hoffman, Law Clerk Keturah James, and former partner Andrew Weissmann.
Jenner & Block’s Pro Bono Efforts Lead to FCC Order Lowering Prison Phone Rates
A Jenner & Block team helped secure an order from the Federal Communications Commission lowering the rates that incarcerated persons and their families pay for phone calls.
On May 20, 2021, the Commission adopted an order lowering the interim rate caps on interstate inmate calling services to $0.12 per minute for all prisons and $0.14 for jails with average daily populations of 1,000 or more. The order also establishes caps on international calling services rates for the first time at all prison and jail facilities.
The team represented the Wright Petitioners, named after the late Martha Wright, who had struggled to pay for phone calls from her incarcerated grandson and later pushed for changes to the rules surrounding rates. The petitioners were among several advocacy groups and civil rights organizations that urged the Commission to lower the calling rates.
“The Wright Petitioners applaud the leadership of Acting Chairwoman Rosenworcel and the Federal Communications Commission for taking this important incremental step toward providing much-needed relief for incarcerated people and their families from unreasonably high calling rates and fees, including capping international rates for the first time,” said Rebekah P. Goodheart, co-chair of the firm’s Communications, Internet, and Technology Practice who led the team representing the Wright Petitioners. “Studies consistently show that keeping in contact while incarcerated reduces recidivism. We look forward to working with the Commission on further reforms to bring additional relief to incarcerated persons and their loved ones.”
The team included Partner Howard J. Symons and Associate Gregory R. Capobianco. Senior Paralegal Cheryl Olson and Practice Assistant Beth Gulden provided key support.
Pro Bono Client Released from Prison without Retrial
On May 6, our client Kenneth “Ken” Smith was released from state prison after serving 19 years for a murder and robbery that he did not commit.
The firm first took Ken’s case in 2006 after a state appeals court reversed and remanded his conviction for murder and 67-year sentence for a new trial. Since that time, various teams led by Partner David Jimenez-Ekman have represented the client through a second trial, a direct appeal, a third trial, another direct appeal, and a federal habeas petition.
Following appeals of his habeas petition, the Seventh Circuit sent an order calling for Ken’s immediate release without conditions at the end of April. This means that he is free from prison and will not be required to report to parole or a probation officer.
“We are grateful that, at long last, the justice system recognizes Ken Smith’s innocence, ending his almost two-decade nightmare,” Mr. Jimenez-Ekman told the Northwest Herald upon our client’s release. “The evidence of Ken’s innocence is overwhelming, and it is a tragedy it took so long for the justice system to acknowledge that. Ken looks forward to the hard and bittersweet task of rebuilding his life.”
The charges against Ken stemmed from a botched armed robbery. In March 2001, the owner of a strip mall burrito shop in McHenry, Illinois, was shot to death after he chased two armed, masked robbers out of his store carrying a knife. The state had no physical evidence linking Ken to the crime. There were no fingerprints from Ken at the scene, no DNA evidence, and no blood that could be linked to him. Instead, Ken was convicted based on a “confession” of an alleged co-conspirator, which was (a) procured after police falsely told him that his friends had already confessed and implicated him, (b) riddled with major inaccuracies that demonstrated he had no knowledge of the crime, and (c) force-fed through leading questions that supplied the only correct information in the entire statement. When the firm first took Ken’s case, the Illinois Second District Appellate Court had reversed and remanded his conviction for a new trial on the basis of a blatant Confrontation Clause violation.
Ken’s second trial occurred in 2008, and resulted in a second conviction that was overturned in 2010, when the Illinois Appellate Court held that the trial court had improperly excluded evidence implicating a completely separate group of perpetrators and exonerating Ken.
Indeed, in the years Ken’s case had been pending to that point, compelling evidence emerged showing that the crime was committed by three individuals completely unrelated to our client and his friends. At Ken’s third trial in 2012, the team put on evidence that those other individuals confessed – unprompted – numerous times to friends, family members, and police; they knew details about the crime that had never been made public; and there was physical evidence corroborating those other individuals’ confessions. The other individuals were seen with cuts and scrapes in the days after the crime; they were connected with a gun that matched the characteristics of the bullets recovered from the victim and found at the scene; and they were riding around in a car on the night of the crime that later was found burned in a field with the help of an accelerant. However, the court excluded important evidence implicating the other group, including compelling evidence of their motive to commit the crime, and also limited the defendant’s ability to cross-examine the only eyewitness to the crime. After three days of deliberation, the jury, still only having heard part of the story, convicted Ken again.
After Ken’s direct appeal was denied in January 2015, the firm filed a federal habeas petition for Ken that was assigned to Judge Andrea Wood of the Northern District of Illinois.
In March 2020, Judge Wood granted the habeas petition and vacated Ken’s conviction and sentence, ruling that evidentiary errors violated his constitutional rights. The court found that the Illinois Appellate Court improperly affirmed evidentiary exclusions that violated his right to present a complete defense and his right to engage in effective cross-examination.
The court wrote that “[g]iven the weaknesses of the State’s case,” the evidentiary errors had a “highly significant effect” on the trial result. The court wrote that “the evidence of the [other group’s] involvement is highly compelling if not conclusive,” that the court was “confounded as to how [the] evidence could not give a rational jury reasonable doubt as to [Ken’s] guilt,” and that, “[e]specially in combination with the exceedingly thin evidence supporting [his] convictions, the court is concerned that a miscarriage of justice has occurred here.” The court granted Ken a new trial, which would have been his fourth on the same charges.
Though the court’s habeas decision was a significant victory, the battle to secure Ken’s freedom was far from over. The State appealed Ken’s habeas victory, and Ken cross-appealed, asking for a ruling that the evidence was insufficient to support his conviction and that he should be released without possibility of retrial. Mr. Jimenez-Ekman and Partner Katharine R. Ciliberti,presented oral argument on the appeal and cross-appeal in November 2020, at which point the panel of Seventh Circuit judges expressed strong skepticism about the constitutionality of the conviction. Chief Judge Diane Wood commented during the argument that “it [was] hard to imagine a case with thinner evidence” than what was presented against Ken.
On April 29, 2021, the Seventh Circuit went even further than the district court, holding that the evidence was constitutionally insufficient to sustain Ken’s conviction. The Seventh Circuit opinion, which reflects a caustic rebuke of the state appellate court’s decision affirming Ken’s third conviction, notes that the evidence implicating the separate group of perpetrators “casts a powerful reasonable doubt on the theory that Smith and Houghtaling were the robbers that night. . . . With such a serious possibility of a third party’s guilt,we are convinced as an objective matter that no rational trier of fact could have found Smith guilty beyond a reasonable doubt.” The Seventh Circuit concluded that “the trial evidence failed to support Smith’s conviction beyond a reasonable doubt and that the Illinois Appellate Court was not just wrong, but unreasonable, in holding otherwise.” The Seventh Circuit remanded the case to the district court, with instructions to grant the petition for a writ of habeas corpus unconditionally, and ordered Ken’s immediate release from state custody—a tremendous victory for our client after nearly two decades of trying to prove his innocence.
On Thursday, May 6, 2021, Ken Smith walked out of Lawrence Correctional Center as a free man. In the days since, he has been spending time with his family and starting the long process of adjusting to life on the outside.
Several media outlets covered Ken’s release, including Law & Crime.
In addition to Mr. Jimenez-Ekman and Ms. Ciliberti, Associate Elena M. Olivieri, and former associate Emma O’Connor. The past trial teams included Partners John R. Storinoand Gregory M. Boyle, and Paralegal Chris Ward.
Illinois Prison Project and Jenner & Block Welcome Home Kensley Hawkins
Kensley “Sonny” Hawkins, who turned 70 years old this year after spending over 39 years in prison, walked out of Shawnee Correctional Center last week a free man. Mr. Hawkins suffered from numerous serious medical issues that made him extremely vulnerable to COVID-19, and we are overjoyed that he returned home to his loving daughter and grandchildren.
Mr. Hawkins grew up in a single-parent household and was one of 10 children. To support his mother, he dropped out of high school and enlisted in the United States Army, where he simultaneously earned his GED, worked as a cook, and earned a National Defense Service Medaland and a parachute badge. After leaving the Army, Mr. Hawkins attended Chicago State University with dreams of becoming an electrical engineer but once again faced the overwhelming pressure of supporting his mother and his family. Mr. Hawkins dropped out of school yet again. In the midst of his financial stress, Mr. Hawkins’ brother committed suicide in their childhood home. Distraught and desperate, Mr. Hawkins agreed to be the get-away driver of the van used in a gas station robbery. The van was later traced back to a person who had been killed before the group went to rob the gas station. As a result, Mr. Hawkins was convicted for murder based on the conduct of his co-defendant, under the controversial theory of accountability.
Always industrious, Mr. Hawkins worked throughout his incarceration. He started as an upholsterer and cabinet maker at Stateville Furniture Factory. Skilled with his hands with a knack for engineering, Mr. Hawkins made products like desks, chairs, bookcases, and cabinets and was eventually promoted to “lead worker” at the factory. More recently, Mr. Hawkins ran the “Set Up” department of the Shawnee Metal Factory. If Mr. Hawkins has a product design, he can quickly prepare the sheet metal for welding and painting. Throughout his incarceration, Mr. Hawkins has been repeatedly recognized for his service and high-quality work and hopes to transfer some of the skills he’s acquired to his new life as a free man. Throughout his incarceration, Mr. Hawkins remained close to a large network of family and friends, including his devoted daughter Ramonia.
Mr. Hawkins was zealously represented by Department Counsel Lisa Schoedel at Jenner & Block, as part of IPP’s pro bono program. Ms. Schoedel's commitment and dedication to Mr. Hawkins and his case paid off: Last week, she received a call from the Illinois Governor’s Office, telling her that Mr. Hawkins would be coming home.
DC Office Lawyers Honored for Pro Bono Service by DC Courts
Since 2011,the DC courts have published an annual Capital Pro Bono Honor Roll that recognizes lawyers who contributed 50 hours or more of pro bono service to those who cannot afford legal counsel. The 2020 Honor Roll includes 55 DC office lawyers. In a joint letter, DC Court of Appeals Chief Judge Anna Blackburne-Rigsby and DC Superior Court Chief Judge Anita Josey-Herring thank all honorees, noting that 2020 presented unique pressures like the pandemic. “We salute you for using your talents and expertise to help those unable to afford an attorney, and rely on your continued dedication and compassion in the face of new challenges that threaten equal access to justice,” the judges write.
The Honor Roll is sponsored by the DC Bar Pro Bono Center and the DC Access to Justice Commission. To learn more about the initiative, read this press release.
Jenner & Block Secures Compassionate Release of Pro Bono Client under First Step Act
Recently, US District Judge Sharon Johnson Coleman exercised her powers under the First Step Act and granted the petition for compassionate relief we filed on behalf of our client, Tracy Conley. By this ruling, Judge Coleman released Mr. Conley from prison more than five years before the end of his sentence.
Mr. Conley was convicted of participating in a conspiracy to rob a drug “stash house.” The stash house was entirely fictional, however, as were the drugs it supposedly contained and the armed men who supposedly guarded it. This case was one of many in which an undercover government agent presented a target with the opportunity to get rich. The scheme began in 2011, when a government agent presented Myreon Flowers with the opportunity to rob a fictional stash house. To trigger steep mandatory sentences, the agent stated the stash house contained a huge quantity of drugs and encouraged Mr. Flowers to recruit others and bring guns.
Mr. Conley became involved only because of what the Seventh Circuit described as two strokes of bad luck: On November 1, 2011, Mr. Conley went to work as usual, but was sent home because a piece of machinery had broken at the factory where he worked. On his way home, he stopped at a gas station where he ran into an old acquaintance. Unbeknownst to Mr. Conley, that acquaintance had joined Mr. Flowers’s group, which had planned the robbery for that very day. Mr. Conley agreed to go with his acquaintance, Mr. Flowers, and the others to what he thought was a job to clean a vacant apartment. On the way, government agents surprised the men and arrested everyone.
All of Mr. Conley’s co-defendants accepted plea deals for lesser charges. Mr. Conley maintained that he knew nothing of the plan to rob a (fake) stash house, but was convicted after a jury trial. Because his charges carried mandatory minimum sentences, Mr. Conley was sentenced to 15 years in prison – twice as long as any other co-defendant. In the years following Mr. Conley’s conviction, the fake stash house program received significant scrutiny. As more prosecutions emerged, so too did evidence suggesting that the government’s selection of targets for the scheme may have been racially motivated. Under increasing criticism, the government abandoned the program. One by one, Mr. Conley’s co-defendants served their lesser sentences and were released, but Mr. Conley remained in prison.
In 2018, Mr. Conley filed a pro se habeas petition, and Judge Coleman appointed Mike to represent Mr. Conley. Leigh joined the team at the start, as did Theo, who was part of the team for the habeas briefing. Eric joined the team last fall. Judge Coleman denied the habeas petition, but certified for appeal the argument that Mr. Conley’s conviction should be reversed on due process grounds, and because the fake stash house scheme targeted people of color. The team is continuing to prosecute that appeal.
With the habeas appeal being briefed, the team filed a motion for a sentence reduction under the First Step Act, also known as compassionate release. Leigh and Eric argued the motion in January, under Mike’s supervision. On March 4, Judge Coleman granted the motion and ordered Mr. Conley’s sentence reduced to time served. Judge Coleman accepted the team’s arguments that the circumstances demonstrated extraordinary and compelling reasons for compassionate release. She noted that Mr. Conley had never even met Mr. Flowers before the day of the planned “robbery,” and that Mr. Conley’s sentence was driven by the government’s decision of what charges to bring, not the Court’s decision of what sentence was warranted. That sentence was “grossly disproportionate,” “devoid of true fairness,” and served “no real purpose other than to destroy any vestiges of respect in our legal system and law enforcement that this defendant and his community may have had.” His disproportionate sentence was a “trial tax.” She concluded that “if there ever was a situation where compassionate release was warranted based on the injustice and unfairness of a prosecution and resulting sentence, this is it.”
Mr. Conley was released on March 17, after serving nearly 10 years in prison. He is now home.
Partner Michael T. Brody and Associates Leigh J. Jahnig, Eric S. Fleddermann, and Theo A. Lesczynski represented Mr. Conley in this important matter.