Firm Achieves Victory in Pro Bono FOIA Case
The firm recently achieved an important Freedom of Information Act victory for our pro bono clients the Brennan Center for Justice at NYU Law School and the Protect Democracy Project. In 2017, our clients filed FOIA requests and later sued for records concerning President Trump's now-disbanded Presidential Advisory Commission on Election Integrity. The government's subsequent document productions were untimely and incomplete, but ultimately revealed that at least two Department of Justice employees, Acting Assistant Attorney General John Gore and trial attorney Maureen Riordan, had used their personal email accounts to discuss matters related to the Commission’s work. Late last year, our clients moved for partial summary judgment, requesting the Court to direct the defendants to expand their search criteria and search the private emails of government employees. In an opinion issued April 30, 2019, Judge Alvin K. Hellerstein granted the motion.
Firm Represents Filmmaker in Release of Unauthorized Afghanistan War Documentary
The Court concluded that in light of government employees' widespread use of private email for official business, limiting FOIA to official repositories would be "inconsistent with ‘the citizen's right to be informed about what their government is up to,’ the very purpose of FOIA." Accordingly, the court directed the government to search the private email accounts of Mr. Gore and Ms. Riordan and report on other employees' use of private email to conduct government business. The decision is a significant affirmation of the public's right to access government records, regardless of where and how they are maintained.
The team representing the Brennan Center and Protect Democracy includes Associate Carl N. Wedoff, who argued the motion, Partner Jeremy M. Creelan, Special Counsel David S. Sussman, and Associates Katie Rosoff, Michael J. Wadden and Cayman C. Mitchell.
Together with the Knight Foundation of Columbia University, the firm represents Miles Lagoze, a former Marines combat cameraman who directed a documentary film based on footage he captured while deployed in Afghanistan. The firm first became involved in the matter after the Marines Corps initiated an inquiry into the film and indicated that the client could be liable for theft of government property. In addition to advising the client with respect to potential criminal liability, the firm helped negotiate a distribution agreement for the film and crafted communications with members of the press in connection with the film’s release. The film debuted in theatres across the country and on iTunes on March 15, and the Marines Corps has indicated that it does not intend to pursue legal action against the firm’s client. The firm’s efforts on this matter were led by Edeli Rivera, David W. Sussman, Brian J. Fischer and Thomas J. Perrelli.
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.
Firm Wins Asylum Victory for Client
Jenner & Block Partner D. Joe Smith and Associate Grant B. Schweikert, along with Evelyn Miller, a Senior Vice President at National Geographic Partners (a firm client), won an important asylum victory for their client Victor de Jesus Chavez Cruz, who arrived in the United States in 2014 as a 13-year old unaccompanied minor from San Miguel, El Salvador. The firm was introduced to Victor in the summer of 2017, learning that Victor had fled his hometown due to repeated threats against his life and his family because of Victor’s sexual orientation. This pro bono case was particularly challenging because several months prior to Jenner’s engagement an immigration Judge had issued Victor a removal order due to a prior missed hearing. As a result, the team had to utilize a multi-pronged approach to maximize Victor’s chances of success, first applying for asylum and then immediately seeking a legal determination of special immigrant juvenile status (SIJS). Specifically, the team obtained a professional psychological evaluation for Victor, filed Victor’s asylum application, accompanied Victor through the in-person asylum interview process, obtained the requisite custody and SIJS findings from the DC Family Court, and filed a lengthy and complex motion to reopen Victor’s immigration proceedings despite the removal order. Throughout this process and in the face of constant uncertainty, Victor persevered with a focus on his education and improving his English. Victor graduated high school in January 2019. Victor and the team were preparing for a May 14th Master Calendar Hearing in the Arlington Immigration Court when Victor’s asylum approval arrived. Thanks to this significant team effort, Victor can now focus on his career aspirations—he wants to be a teacher or a nurse—and begin his new life without the constant fear of possible deportation.
Mr. Smith, Mr. Schweikert and Ms. Miller were assisted by the DC office of KIND (Kids in Need of Defense).
A Story of Courage: Asylum for Teacher and Congolese Immigrant Jean B.
Client Jean B., a high school history and geography teacher in the Republic of Congo, was part of the leadership of a teacher’s union in the country. Known for its long history of grievances between the teachers and Congolese government, Mr. B. and several union teachers went on strike in 2013 in an effort to create change. “We were living in a country where teachers were paid poorly and teaching in miserable conditions,” said Mr. B.
After several interrogations, beatings and threats to his life from the Congolese government, Mr. B. fled to the United states. The National Immigrant Justice Center then referred his asylum case to a team including Jenner & Block Partner Wade A. Thomson and Senior Counsel at McDonald’s Corporation Pauline Levy for pro bono legal services.
Learn more about Mr. B’s courageous story in the video below and in our 2018 Heart of the Matter Pro Bono Report.
Pro Bono Stories: Jean B. from Jenner & Block LLP on Vimeo.
Partnering with the UK’s Centrepoint Charity
Creating an effective pro bono partnership requires a broad commitment to supporting an organization on many levels. But this is the goal of Jenner & Block’s London office in its new partnership with Centrepoint, the United Kingdom’s leading youth homelessness charity. “This is a unique opportunity for everyone in our growing office to be part of something that makes a difference in the lives of many people,” said Partner Christine Braamskamp, who is a co-chair of the firm’s Investigations, Compliance and Defense Practice.
Ms. Braamskamp and Partner Christian Tuddenham, a co-chair of the firm’s pro bono committee, are in the early stages of providing pro bono governance and risk management advice to Centrepoint’s board of trustees.
Hear more about the partnership and the London office’s growing pro bono program from Mr. Tuddenham and Centrepoint’s Relationship Director Orla Constant in this video.
The Heart of the Matter 2018 Report
Jenner & Block is pleased to present The Heart of the Matter, our annual report that covers highlights of our pro bono and community service of 2018.
Through feature articles and videos, this multi-media report demonstrates how Jenner & Block has changed the lives of the clients and organizations we are privileged to represent.
To stay informed about new pro bono developments in 2019, please also visit The Heart of the Matter blog.
Asylum for Children in Need
Every year, minors in need of protection and support seek asylum in the United States. In this video, Partner Michael W. Ross discusses one of his pro bono clients who came to the United States as a minor after fleeing an unsafe living situation in Ecuador.
Firm Files Lawsuit to Protect Historic Rock Island County Courthouse from Unlawful Demolition
Interested in learning more about Jenner & Block’s pro bono advocacy? Visit Jenner & Block’s annual pro bono report, The Heart of the Matter.
Jenner & Block filed a complaint and temporary restraining order, pro bono, on behalf of Landmarks Illinois, the National Trust for Historic Preservation, the Rock Island Preservation Society, the Moline Preservation Society, the Broadway Historic District Association and Rock Island Justice Center bondholder Fred Shaw. The firm represents all of the plaintiffs against the Rock Island County Public Building Commission (PBC) and Rock Island County Board to protect Rock Island County Courthouse from unlawful demolition. The lawsuit contends the PBC is proceeding with demolition of the historic courthouse without complying with the Illinois State Historic Resources Preservation Act or the Illinois Public Building Commission Act. Additionally, the lawsuit alleges that the PBC plans to fund the demolition with bonds that were issued exclusively for construction of the Justice Center Annex, in breach of the covenants of those bonds. Plaintiffs are requesting that the PBC and Rock Island County Board engage in a good-faith effort to find a reuse for the historic courthouse building, including actively pursuing proposals from the private market. In addition to preserving the historic courthouse, this would avoid the demolition costs, create jobs and put the building on the tax rolls. 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.
Article Features Latest USS Cole Bombing DC Circuit Appeal
The firm team representing the plaintiffs includes Associates Thomas E. Quinn and Charlies W. Carlin and Partner Randall E. Mehrberg.
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.
Firm’s Efforts to Free Pro Bono Client Noted in Chicago Daily Law Bulletin Article
Titled “Northwestern Law Center Clears Three Wrongful Convictions,” the article featured the recent successes of Northwestern Pritzker School of Law’s Center on Wrongful Convictions. The firm partnered with the center in the case of Patrick Pursley, who was acquitted of murder after a two-day bench trial in Winnebago County on January 16. Partner Andrew W. Vail, co-chair of the firm’s Pro Bono Committee and one of Mr. Pursley’s lawyers, is quoted saying, “It’s a special opportunity that’s made possible by Jenner & Block’s long-standing commitment to pro bono to be able to take on a case like Patrick’s and obtain the necessary experts and deploy the firm’s resources and our attorney skills to bring justice.” On the same day of Mr. Pursley’s acquittal, another client of the center had murder charges in Cook County dropped. On January 24, a center client in New York had his conviction vacated.
Patrick Pursley Acquitted after 25 Years Based on Precedent-Setting New Ballistics Evidence
A Jenner & Block team secured a significant victory on behalf of pro bono client Patrick Pursley. On January 16, 2019, Mr. Pursley was found not guilty of the 1993 first-degree murder of Andy Ascher in a retrial before Illinois Circuit Judge Joseph McGraw.
Mr. Pursley was originally convicted in a 1994 jury trial in which the state relied heavily on the testimony of a state ballistics examiner that a firearm attributed to Mr. Pursley fired the bullets and cartridge cases found at the crime scene. Although Mr. Pursley maintained his innocence and sought post-conviction ballistics testing, Illinois law did not provide for this type of testing at the time, and his request was denied. However, Mr. Pursley persisted. While in prison, Mr. Pursley wrote an article stating that the law should keep up with technology and allow for ballistics testing in post-conviction settings just as it did at the time with DNA. After lobbying efforts on Pursley’s behalf, the Illinois legislature amended the law in 2007 to provide for post-conviction ballistics testing.
In October 2008, at the request of Northwestern’s Center on Wrongful Convictions, the firm agreed to assist Mr. Pursley in his effort to get the state of Illinois to retest the ballistics evidence. On January 26, 2011, the Illinois Appellate Court, reversing a decision by the lower court, granted his request, making People v. Pursley the first case in the country to allow a prisoner new ballistics testing under a Post-Conviction Testing Act.
The firm then submitted the ballistics evidence to two preeminent and independent ballistics specialists who examined the evidence using new technology and concluded that Mr. Pursley’s firearm did not fire either of the bullets or either of the cartridge cases found at the crime scene. In December 2016, Judge McGraw of the Winnebago (IL) County Circuit Court held a three-day evidentiary hearing on this evidence, and on March 3, 2017 he vacated Pursley’s conviction and awarded him a new trial. At that time, Mr. Pursley was released on bond after spending more than 23 years in prison.
The state then appealed Judge McGraw’s decision, to no avail.
On January 10, Mr. Pursley’s retrial began in Winnebago County, with closing arguments heard on January 15. On January 16, Judge McGraw announced his decision to acquit Mr. Pursley, stating that the “evidence in 1993 was scant by today’s standards, and when you start with scant evidence you’re not in a good position to reevaluate it years later.” He further commented that the defense’s ballistics experts demonstrated conclusively that the cartridge cases were not fired from the gun attributed to Mr. Pursley.
For more than a decade, a diverse team of lawyers has been dedicated to overturning this wrongful conviction. Partners Robert R. Stauffer and Andrew W. Vail and Associates Kevin J. Murphy and Monika N. Kothari led significant aspects of the case. . Associate Sara Kim and paralegals Eric Herling and Nick Perrone provided invaluable assistance before and during trial. Firmwide, more than 60 professionals – from lawyers to paralegals to library services – contributed 9,478 hours to this case over more than a decade.
The case generated significant media attention throughout the years. Various news outlets such as NBC and the Associated Press have reported on the retrial and various pre-trial proceedings. In the past, both The National Law Journal and Law360 pointed to the case when awarding the firm with pro bono recognition.
Firm Wins Victory Before the Fourth Circuit in First Amendment Case about Use of Social Media By Public Officials
The firm secured a victory in a pro bono matter that focused on whether the First Amendment applies to a government official’s Facebook page. At issue in Davison v. Randall was a trial court’s decision regarding whether Phyllis Randall, chair of the Loudoun County Board of Supervisors, violated the First Amendment rights of resident Brian Davison when she banned him from the “Chair Phyllis J. Randall” Facebook page she administered. The trial court ruled that Ms. Randall had unconstitutionally barred Mr. Davison from her Facebook page based on Mr. Davison’s viewpoint, and Ms. Randall appealed.
Partner Jessica Ring Amunson and Associate Tali R. Leinwand represented the Knight First Amendment Institute at Columbia University, which argued on behalf of Mr. Davison.
Mr. Davison had used his personal Facebook page to post comments on Ms. Randall’s Facebook page that criticized the Loudoun Board and Ms. Randall for actions taken in their official capacities. Ms. Randall subsequently deleted Mr. Davison’s posts and banned Mr. Davison’s account from her Facebook page. In November 2016, Mr. Davison filed a complaint against Ms. Randall and the Loudoun board, alleging that Ms. Randall’s decision to ban Mr. Davison for expressing critical speech amounted to “viewpoint discrimination.” Following a one-day bench trial,
the trial court ruled that Ms. Randall had unconstitutionally barred Mr. Davison from her Facebook page based on Mr. Davison’s viewpoint, and Ms. Randall appealed.
On January 7, 2019, the Fourth Circuit held that the Chair’s Facebook page “bear[s] the hallmarks of a legal forum.” “In sum,” wrote Judge James A. Wynn, “the interactive component of the Chair’s Facebook page constituted a public forum, and Randall engaged in unconstitutional viewpoint discrimination when she banned Davison’s [private page] from that forum.”
The Fourth Circuit’s decision marks the first time an appellate court has addressed the applicability of the First Amendment to social media accounts run by government officials. In May 2018, a federal trial court in New York held that President Trump’s blocking of critics on his Twitter page violates the First Amendment. That case, in which the firm serves as co-counsel with the Knight Institute, is currently pending before the Second Circuit.
Arguing for Social Security Benefits for Disabled Client
In December, Partner Ishan K. Bhabha made his first argument before the US Supreme Court. In Biestek v. Berryhill, Mr. Bhabha represents petitioner Michael Biestek, who applied for Social Security benefits because of a disabling, physical impairment.
Watch the video below to learn more about the case.
Click here to listen to the argument.
Seventh Circuit Unanimously Rules Pro Bono Client is Entitled to Evidentiary Hearing
A Jenner & Block team secured a significant win from the Seventh Circuit on behalf of pro bono client Anthony Lee, who has been incarcerated since 1995. On December 21, a panel of judges unanimously ruled Mr. Lee was entitled to an evidentiary hearing on his claim for ineffective assistance of counsel based on his trial counsel’s failure to investigate and call five witnesses at trial.
In 1996, Mr. Lee was convicted of aggravated sexual assault and kidnapping and sentenced to 100 years in prison. The trial had no physical evidence or eyewitness testimonies other than testimony from Mr. Lee and his accuser, L.M. Prior to Mr. Lee’s trial, five potential witnesses submitted affidavits to Mr. Lee’s trial counsel that corroborated Mr. Lee’s testimony and contradicted his accuser’s. However, trial counsel did not call any of the five witnesses to testify at trial and never contacted them.
In 1998, Mr. Lee began pursuing a claim for ineffective assistance of counsel in state court. Although Mr. Lee pleaded a prima facie claim under Strickland v. Washington, 466 U.S. 668 (1984), the state courts rejected his claim without ever granting him an evidentiary hearing on the merits. The state courts reasoned that Mr. Lee suffered no prejudice from trial counsel’s apparent failure to investigate the witnesses because the affidavits did not necessarily demonstrate that the witnesses would have made a difference at trial.
Jenner & Block began representing Mr. Lee in 2013. In 2017, the firm filed a federal habeas petition in the Northern District of Illinois. Although stating that it was a “close call” and “perhaps not the result this Court would reach on a blank slate,” the federal court held that the state courts did not unreasonably apply Strickland, and therefore dismissal was required. The firm filed an appeal to the Seventh Circuit.
On October 22, 2018, Jenner & Block Associate Abraham M. Salander argued the appeal before a panel of judges. Judge Easterbrook led the court’s questioning and focused on whether Mr. Lee’s requests for an evidentiary hearing in state court were sufficiently detailed to entitle him to a hearing in federal court under the federal habeas statute. After oral argument, the court ordered the parties to submit copies of Mr. Lee’s requests for an evidentiary hearing in state court along with the state courts’ rulings on those requests. Jenner & Block submitted a brief supported by 37 documents demonstrating that Mr. Lee’s requests were sufficient under federal law.
On December 21, the Seventh Circuit unanimously ruled Mr. Lee was entitled to an evidentiary hearing because, if the witnesses were called to testify, it was “unlikely” they “would have parroted their affidavits and refused to say another word.” The court specifically praised the firm’s “enthusiasm” and collection of relevant information in response to the court’s post-argument order.
The firm team was led by Partners Bradley M. Yusim and Barry Levenstam, who, along with Paralegal Mary Frances Patston, were on the case since the beginning of the firm’s representation.
Partners Michael T. Brody, Anton R. Valukas, Randall E. Mehrberg and Megan B. Poetzel assisted with oral argument preparation. Partner Jessica Ring Amunson and Associate William L. Von Hoene worked on the case at earlier stages.