Article Features Latest USS Cole Bombing DC Circuit Appeal
Courthouse News Service published an article about arguments in the United States Court of Appeals for the District of Columbia arising out of the trial of the alleged mastermind of the attack on the US Navy destroyer USS Cole.
A Jenner & Block team represents two civilian lawyers who resigned on ethical grounds from serving as trial counsel to the defendant, Abd al-Rahim Hussein Muhammad al-Nashiri, after discovering various intrusions into the attorney-client privilege, including finding surveillance equipment in a client meeting room.
In October 2017, the chief defense counsel for Military Commissions at Guantánamo Bay, Marine Corps General John Baker, excused Pentagon-paid civilian defense lawyers Mary Spears and Rosa Eliades as counsel for Mr. Nashiri. The military judge overseeing the case, Air Force Colonel Vance 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 arguments before the DC Circuit was General Baker’s authority to dismiss the civilian lawyers. The article quoted Partner Matthew S. Hellman addressing the military court rules that grant the general the right to excuse Ms. Spears and Ms. Eliades. “It couldn’t be much clearer,” said Mr. Hellman, who is a co-chair of the firm’s Appellate and Supreme Court Practice.
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. Quoted in the Courthouse News Service article, one of the justices overseeing the arguments remarked, “I just don’t see how this passes the smell test.”
The arguments marked the second time the case appeared in the DC Circuit. In May, Mr. Hellman and the firm argued to grant Ms. Spears and Ms. Eliades the right to intervene in US Court of Military Commission proceedings regarding their resignation from the case.
In addition to Mr. Hellman, the Jenner & Block team includes Partners Todd C. Toral—lead counsel for the civilian lawyers—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.
Jenner & Block Secures DC Circuit Victory in Pro Bono Parole Case
On September 4, a Jenner & Block team led by Associate Zachary C. Schauf prevailed in the DC Circuit on behalf of an inmate, Edward Ford, who challenged the US Parole Commission’s unlawful practice of delaying parole hearings for certain inmates convicted of offenses under both the US Code and DC Code. Expressly splitting with the Seventh Circuit, the DC Circuit ordered the commission to hold a new hearing to redress the unlawful delay. Thanks to this ruling, Mr. Ford now has a real chance of obtaining parole during his lifetime.
In 1980, Mr. Ford committed three murders in three months—one in Virginia (yielding a conviction in federal court), one in the District of Columbia (yielding a conviction in DC court), and one in Maryland (yielding a conviction in Maryland court). Because the District of Columbia does not operate its own prisons, DC Code offenders serve their time in federal custody and the US Parole Commission oversees their parole hearings. But DC Code sentences—and inmates’ right to seek parole from them—remain governed by DC law. Under DC law, Mr. Ford became eligible for parole from his DC Code sentence in 2000 and should have received a DC Code parole hearing at that time.
But for inmates like Mr. Ford, who are serving both DC Code and US Code sentences, the commission has promulgated a regulation that delays DC Code parole hearings until the inmates are deemed suitable for parole from their federal sentences. For Mr. Ford, that did not occur until 2005 and, as a result, Mr. Ford’s parole hearing occurred five years later than it should have.
That delay has consequences. The applicable DC Code parole law measures an inmate’s suitability for parole based on a numerical “grid score.” Every time an inmate has a parole hearing, he has the chance to lower his grid score by one—but only one—point by showing rehabilitation. So the earlier and more frequently these hearings are, the better an inmate’s chances are of parole. Delaying these hearings, by contrast, means an inmate’s score is permanently higher.
When the commission denied Mr. Ford’s most recent request for parole in 2012, Ford brought suit in the US District Court for the District of Columbia. The district court granted summary judgment to the government. Mr. Ford appealed and the DC Circuit appointed Jenner & Block as amicus curiae to present arguments in Mr. Ford’s favor. Mr. Schauf presented oral argument on April 26, 2018, before Chief Judge Garland and Judges Griffith and Srinivasan.
On September 4, 2018, the DC Circuit unanimously reversed in an opinion written by Judge Srinivasan. The court noted that, 25 years ago, the Seventh Circuit had approved the commission’s approach. But the court explained that it “must give effect to the terms of [the governing statute] as we understand them,” even if it required “reaching a different conclusion.” According to the court, the governing statutes “require the commission to hold an offender’s first DC parole hearing at his DC parole eligibility date.” And in “light of th[e] substantial benefits from holding DC parole hearings as soon as an offender is eligible for DC parole,” the court found it could not “write off the inconsistency between the commission’s regulation and [the statutes] as immaterial.”
The court reversed the grant of summary judgment in the commission’s favor and remanded with directions to enter summary judgment in Mr. Ford’s favor. The court ordered the commission to hold a new hearing for Mr. Ford, applying the proper standards.
Despite his grave crimes, Mr. Ford has worked tirelessly to rehabilitate himself, lowering his grid score at each hearing he has received. And while Mr. Ford is still facing a life sentence in Maryland, the DC Circuit’s decision has given Mr. Ford hope that he may obtain release from prison during his lifetime.
Partners Max Minzner and David W. DeBruin supervised the case, edited the briefs and served as moot court judges, along with Partner Jessica Ring Amunson, Associates Previn Warren, William K. Dreher and Benjamin M. Eidelson, and former associate Kendall Turner. Cheryl Olson provided paralegal assistance and Sheree Anyiam provided secretarial assistance.