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On October 22, a Jenner & Block team partnered with The Legal Aid Society to file a lawsuit pro bono in New York State Supreme Court on behalf of the Coalition for the Homeless and single adult New Yorkers who are experiencing homelessness. The lawsuit is against the City of New York, the Department of Social Services, and the Department of Homeless Services for failing to take appropriate action to provide safe shelter for single adults that protects them from aerosol transmission of COVID-19. A press release published by the Legal Aid Society notes that despite the large amount of vacant hotel rooms, and federal funding explicitly available for the purpose of housing adult homeless individuals, the City has taken only half-measures to protect this vulnerable group. The lawsuit seeks to require that the City offer a single-occupancy hotel room to single adult homeless New Yorkers for the duration of the pandemic, among other forms of relief.
The lawsuit was brought under the Americans with Disabilities Act, Section 504 of the Rehabilitation Act, the Due Process Clause of the United States and New York State Constitutions, the New York State Human Rights Law, the New York State Social Services Law and its implementing regulations, and the New York City Human Rights Law.
“To fight the coronavirus effectively, all New Yorkers – including those in need of shelter – need the ability to remain socially distanced,” Ms. Smalls said in the press release, “The City has an obligation under the New York State Constitution to provide safe shelter to our most vulnerable New Yorkers. We intend to ensure they fulfill it.”
On July 16, the Illinois Appellate Court ruled that a state historic preservation law prevents local authorities from demolishing the nearly 125-year-old Rock Island County Courthouse. Justice William E. Holdridge wrote in a 46-page opinion that neither Rock Island County, nor the Chief Judge of the Rock Island Circuit Court could order the courthouse demolished without first complying with the Illinois State Agency Historic Resources Preservation Act. Under that Act, the Illinois Department of Natural Resources and the Illinois Environmental Protection Agency must undergo a process to look for alternatives to demolition. The Appellate Court enjoined any demolition until the county complies with the state law.
The Appellate Court decision is an important step forward in saving the historic landmark. The Rock Island County Courthouse, constructed in 1896 and determined eligible for listing on the National Register of Historic Places in 2017, is included on Landmarks Illinois’ 2018 Most Endangered Historic Places in Illinois.
Jenner & Block represents, pro bono, all of the plaintiffs against the Rock Island County Public Building Commission and County Board; they include Landmarks Illinois, the National Trust for Historic Preservation, the Rock Island Preservation Society, the Moline Preservation Society, the Broadway Historic District Association, Rock Island Justice Center, and bondholder Fred Shaw. Associate Thomas E. Quinn argued the appeal. The firm team includes Charles W. Carlin, Hope H. Tone, Bill A. Williams, and Co-Managing Partner Randy E. Mehrberg.
In 2012, our client was sentenced to 252 months in prison for a non-violent drug offense, a sentence that was 12 months longer than the minimum sentence. He has been an inmate at FCI Oakdale in Louisiana, despite being tried in the Northern District of Illinois and residing in Illinois. Oakdale has experienced a severe outbreak of COVID-19 and has a staggering 18.5% confirmed infection rate. This percentage is about 22 times worse than the United States overall. Furthermore, Oakdale has faced heavy scrutiny (including media attention) for its wardens’ negligent handling of the pandemic and endangering inmates. Our client has three of the most common COVID-19 comorbidities, making him highly susceptible to severe illness if he were to contract the virus. Out of fear for his life, he filed a pro se petition with Judge Lefkow for compassionate release under 18 U.S.C. § 3582(c)(1)(A)(i).
On June 18, Judge Lefkow appointed Partner Paul B. Rietema to assist our client with his petition. Associate Maliha Ikram quickly worked to gather necessary information to support the petition. Maliha spoke to our client on June 19to glean information on his friends, family and community members. Maliha contacted dozens of these individuals over the course of 10 days. On July 1, Paul and Maliha were able to make an evidentiary submission that included 22 letters and affidavits in support of our client’s release.
On July 7, our client’s motion was granted and his sentence was reduced to time served. He has been ordered to be released from custody at Oakdale as soon as practicable. His term of supervised release will commence immediately upon his release, with his first six months to be served in home confinement. Though our client’s prison sentence would have otherwise run until 2028, the court released him to home confinement with the remainder of his term to be served on supervised release.
In granting his motion, the court noted that our client does not pose “a danger to individual or community safety” and, while incarcerated, has shown remorse for past conduct, earned his GED, and enrolled in several self-bettering courses. To have kept him imprisoned at Oakdale would have been to put him at “extraordinary risk” for his life.
The team was assisted by Legal Assistant Mirella Marquez, Manager of Docketing Services Na’eem Conway, and Docket Assistant Dylan Doppelt, who were instrumental in compiling and filing documents on our compressed timeline.
The Court of Appeals reversed a lower court and ordered a new trial for firm client, David Lang, finding that the trial court had improperly substituted a juror mid-trial. Mr.Lang, now 78 years old, was convicted in 2012 of second-degree murder in the shooting death of his brother on the farm where they lived together in upstate New York. As a result of that conviction, Lang was sentenced to 17 years to life in prison.
The firm appealed first to the New York Intermediate Appellate Court, which affirmed the conviction. The firm then petitioned the New York Court of Appeals to hear the case, and the Court of Appeals agreed to do so. Review by the Court of Appeals review is extremely rare—the court took only 34 cases out of about 2,500 criminal applications in 2019.
At issue in the appeal was the court’s substitution, on the ninth day of the trial, of a sitting juror with an alternate juror. On the morning of that ninth day of trial, the trial judge announced that he had been told by a court official that a juror couldn’t be there because a family member had a medical appointment in Rochester, which was several hours away by car. The court, when ordering the juror substitution, provided inaccurate (and limited) reasoning as to why it believed the juror might have suddenly become unavailable, and never actually made an inquiry into whether the juror was unavailable or likely to appear within a reasonable amount of time.
The Court of Appeals found that the trial court failed to conduct the requisite “reasonably thorough inquiry” before substituting jurors. “Not only did the court provide only limited – and inaccurate – reasons to support a finding of unavailability, there is nothing on the record reflecting that it made any inquiry into Juror Number 9’s whereabouts or likelihood of appearing prior to ordering the substitution of Juror Number 9 with Alternate Number 1,” reads the opinion.
The court reversed Lang’s murder conviction and ordered a new trial.
Partner Matthew S. Hellman argued before the Court of Appeals. Associate Caroline C. Cease was also on the team. They were supported by Legal Assistant Beth Gulden, Senior Paralegal Cheryl Olson, Associate Manager of Docketing Services Tyler Edwards and Manager of Docketing Services Na’eem Conway. Partners Jessica Ring Amunson and Zachary C. Schauf and Law Clerk Rachel Wilf-Townsend mooted the team. Associate Samuel C. Birnbaum and former associate Marguerite Moeller assisted with the Third Department appeal, and the original team on the long-running case included former partner Peter Pope.
On May 7, Jenner & Block Partner Devi M. Rao and Associate Emily S. Mannheimer filed an amicus brief on behalf of the ACLU Women’s Rights Project, the New York Civil Liberties Union, National Women’s Law Center and 49 additional organizations committed to gender justice.
The case, Francis v. Kings Park Manor, involves whether or not a housing provider is obligated under the Fair Housing Act (FHA) to address tenant-on-tenant harassment if the provider had known about discriminatory conduct and had the power to correct it. A Second Circuit panel held that an African-American tenant plausibly alleged that his landlord had discriminated against him under the FHA by failing to address severe race-based harassment by another tenant.
The brief addressed the consequences that the Second Circuit’s decision will have for tenants’ housing protections; particularly, for women facing sexual harassment. Citing testimonies of women involved in sexual harassment cases, the brief observed that this widespread problem jeopardizes individuals’ access to a safe and stable home. The brief noted how intersecting forms of harassment, which are “based on multiple aspects of a person’s identity, such as race, national origin, religion and disability” pose significant concerns for women tenants, who have often indicated that “they wereharassed precisely because of their race and stereotypes about women of color.” It also explained that housing providers are empowered to take reasonable steps to address tenant-on-tenant harassment in accordance with the FHA and the First Amendment.
The Francis case is currently before the Second Circuit en banc. The court will hear oral arguments in September 2020.
On January 16, 2019, an Illinois judge acquitted pro bono client Patrick Pursley of first-degree murder.
In this video, Mr. Pursley and his Jenner & Block lawyers reflect on the decades-long fight to prove his innocence.
Read more about the case in The Heart of the Matter .
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.
A wrongfully accused man is acquitted. An imprisoned terminally ill man receives an $11 million jury verdict. From veterans to human trafficking victims, from the Modern Classroom Project to the YWCA, Jenner & Block is pleased to tell these stories and more in our annual report on pro bono and community service. The Heart of the Matter, published in time for Valentine’s Day, is a multi-media website that demonstrates how we have changed the lives of the clients and organizations we are privileged to represent. For more information about the firm's pro bono program, please also visit The Heart of the Matter blog.
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.
Through the firm’s work serving on the Criminal Justice Act panel in the United States District Court for the Southern District of New York, a team of associates secured a favorable and unexpected outcome in a pro bono matter.
The case involved a 23-year-old client who had a significant prior criminal record and who was subsequently charged with selling relatively large quantities of drugs on 12 occasions to an undercover officer.
The team negotiated a plea agreement with the government shortly after the client's arrest that reduced the mandatory minimum sentence from 120 months to 60 months. Despite the government's recommendation for an incarceration term of at least 100 months, and a Sentencing Guidelines range of up to 150 months' incarceration, the client was ultimately sentenced to a below-Guidelines term of 72 months in prison.
During the sentencing proceeding in December 2019, Chief Judge Colleen McMahon praised Ms. Leinwand's "very eloquent" oral argument and her and Mr. Gowdey's "excellent brief," telling the client how fortunate he was to have received such "excellent lawyering" and specifically citing favorable policy arguments that were set forth in the brief. The client was very appreciative as well.
Over the course of the representation, the team was also assisted by Associate Matt Phillips, summer associate Idun Klakegg, and paralegals Ricia Augusty and Charlotte Stretch.
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.
On December 17, a unanimous jury in Springfield, IL returned a more than $11 million verdict for incarcerated pro bono client William Kent Dean. The jury found that Wexford Health Sources, Inc. and several of its employees violated Mr. Dean’s federal civil rights (8th Amendment, deliberate indifference) and committed both institutional negligence and medical malpractice under Illinois law. The result concluded a seven-day trial before US District Judge Sue Myerscough in the Central District of Illinois.
Mr. Dean has stage-4 metastatic kidney cancer, which is terminal. While imprisoned in the Taylorville Correctional Center in central Illinois, he began showing obvious signs of serious illness, including gross hematuria, or visible blood in his urine, in late 2015. Despite his alarming symptoms, Mr. Dean did not receive proper diagnostic testing for four months and did not receive surgery for seven months. Jenner & Block was appointed as his pro bono counsel in 2017.
“We are very pleased that the jury saw fit to compensate our client and his family for the tragic events surrounding his care. The delays in providing that care essentially have become a death sentence for Mr. Dean,” said Partner Joel Pelz on behalf of the team. “As his pro bono counsel, every member of our team has been privileged to tell his story, give a voice to his suffering and make the defendants accountable for this very serious error in care.”
At issue in the case was Wexford’s policy of “collegial review,” a process intended to address clinically appropriate and cost-conscious care that Wexford used instead to avoid paying for necessary care. From December 2015 to July 2016, while Mr. Dean was held at Taylorville Correctional Center, the delays occasioned by collegial review allowed Mr. Dean’s cancer to grow and metastasize. In closing, the team asked the jury to consider not only the pain, suffering and mental anguish Mr. Dean had endured, but also the opportunity to send a message to Wexford that collegial review cannot be used to delay care.
The jury’s award included an assessment of $10 million in punitive damages against Wexford itself.
In addition to Mr. Pelz, Jenner & Block trial team members included Associates William M. Strom, Chloe Holt and Nathaniel K.S. Wackman. The team was assisted by paralegals Dan Rooney, Kevin Garcia and Eric Herling. In addition to their service, several trial members also provided their services pro bono, including trial director Dylan Green of Green Legal Technology and the trial graphics professionals, Kent and Val Bell of Discoll Bell LLC.
On January 28, 2020, Mr. Dean was released from Illinois Department of Corrections custody upon completing his prison sentence. He was picked up from Taylorville Correctional Center by his wife, Cynthia Dean, and called his lawyers at Jenner & Block during their drive home to La Salle County, Illinois. Mr. Dean had been in custody since 2010. He will now begin a three-year term of court supervision to complete his sentence.
In February 2020, the Chicago Lawyer magazine highlighted the case in a feature article.
The case name is Dean v. Wexford Health Sources, et al.
Jenner & Block has filed a lawsuit seeking to ensure that the US government alter its “deficient” plans for the 2020 census so that hard-to-count populations are counted.
Co-counsel with the Rule of Law Clinic at Yale Law School, the firm represents the Center for Popular Democracy Action, a New York-based non-profit that works to “expand the voice and power of workers, communities of color and immigrants on issues of economic and racial justice,” and the city of Newburgh, located in the Southern District of New York. Newburgh is home to large Hispanic American, African American and undocumented populations, making it a hard-to-count community for the 2020 Census.
The complaint describes the risk of a constitutionally and statutorily deficient census, which is used to allocate public funding, for seat apportionment in the US House of Representatives and to create state legislative districts. Specifically, according to the complaint, the government’s Final Operational Plan “drastically and arbitrarily reduces the necessary resources for key activities,” the complaint reads. It asks that the court hold unlawful five Census Bureau actions, including plans to hire an unreasonably small number of enumerators and a drastic reduction in the number of field offices.
“These decisions are not supported by reason. They will inevitably cause a massive and differential undercount of communities of color,” the complaint reads.
Among other things, the lawsuit seeks an injunction that would require the government to implement a plan to ensure that hard-to-count populations will be enumerated in the census.
The team that filed the complaint included Partners Jeremy M. Creelan and Susan J. Kohlmann, Special Counsel Seth H. Agata , Associates Jacob D. Alderdice and David J. Clark and Law Clerk Keturah James.
On November 7, a Jenner & Block team secured a significant pro bono victory on behalf of thousands of Navy and Marine Corps veterans when a federal judge rejected the Secretary of the Navy’s request to dismiss a nationwide class action against the Navy Discharge Review Board (NDRB) and the US Department of Defense for issuing less-than-honorable discharges to veterans suffering from undiagnosed PTSD.
In addition to denying the government’s motion, Senior Judge Charles S. Haight, Jr. of the District of Connecticut ordered the case to proceed discovery and directed the Navy to reconsider the requests to upgrade to Honorable the discharge characterizations of firm client Tyson Manker and of John Doe, a member of the organizational plaintiff National Veterans Council for Legal Redress (NVCLR).
“Today’s ruling, in time for Veterans Day, reaffirms the rule of law and brings us one step closer to getting justice for every veteran who was unfairly dismissed from the military with post-traumatic stress disorder, traumatic brain injury, and military sexual trauma, and denied their honorable discharge,” said Manker in a press release announcing the judge’s order to proceed.
In March 2018, Manker, a veteran of the 2003 invasion of Iraq, and NVCLR filed a federal class action lawsuit on behalf of former Marines and sailors suffering from PTSD, who were unfairly dismissed from the military and denied their honorable discharge. The lawsuit seeks to ensure the fair treatment of veterans who have or would be subjected to unfair procedures during the review process in front of the NDRB.
On November 16, 2018, a judge certified the class action against the NDRB and US Department of Defense. The government went on to advance multiple arguments that, as the Court summarized, “seem to relate exclusively to the individual circumstances of Tyson Manker and John Doe.” But Judge Haight rejected these contentions, emphasizing that in fact thousands of veterans would likely be affected by the litigation: “Manker and Doe play important roles in this opera, but there are other soloists, a chorus, and a full orchestra—a fair analogy, given that the Court has certified a class of Navy and Marine Corps veterans…”
“As many as one-third of the more than two million men and women who have served since September 11, 2001, suffer from PTSD or other mental health conditions in relation to their service. Many of these veterans obtain less-than-Honorable discharges, often for minor infractions related to their mental health,” said Garry Monk, executive director of NVCLR. “Veterans with ‘bad paper’ are often cut off from the very benefits that would allow them to successfully transition back to civilian life, and instead suffer a lifetime of stigma, barriers to employment, and ineligibility for crucial state and federal benefits.”
“When veterans seek to correct these unjust discharges, the Navy denies the vast majority of their applications, contrary to statute and to Department of Defense policies designed to provide relief to veterans with service-related PTSD and other conditions,” said Samantha Peltz, a law student intern in the Yale Veterans Legal Services Clinic. “Despite its claims of improved compliance with Defense policies, over the past two years, the Navy has granted less than 20% of discharge upgrades for applicants with mental health claims. The court’s decision today is another step towards justice for veterans who served their country and came home only to face daunting hurdles in seeking care for the wounds of war.”
Acting as co-counsel with Yale Law School’s Legal Services Organization Veterans Clinic, Jenner & Block represents veterans who say they were denied the Honorable upgrade because they had undiagnosed mental health issues, such as PTSD. Associates Jessica A. Martinez and Jeremy H. Ershow have led the firm team since the complaint was filed in early 2018. Associate Nicole Taykhman also made the oral argument in federal court on the motion. They are overseen by Partners Susan J. Kohlmann and Jeremy M. Creelan.