May 29, 2014

Jenner & Block Partner Brian J. Fischer and Associate Matthew D. Cipolla led a Jenner & Block team to a significant victory in a pro bono case on behalf of the firm’s client, Nicole Copeland.  On May 28, a unanimous, three-judge panel of the Second Circuit took the highly unusual step of vacating the criminal conviction of Ms. Copeland and two co-appellants, adopting point-for-point the team’s argument that the trial was so “infected” with prosecutorial misconduct that, combined with an erroneous evidentiary ruling by the district court, Ms. Copeland was denied her right to a fair trial.  The opinion is a significant piece of analysis that will likely be cited going forward in cases and decisions where argument is presented about over-rigid exclusion of evidence at trial and over-zealous prosecutorial argument in openings and summations.

Ms. Copeland and her co-defendants, including her employer, Certified Environmental Services, Inc. (CES), were air monitors tasked with approving asbestos removal work performed by other companies.  The charges against them related to an alleged scheme by which the defendants violated various state and federal environmental regulations and certified that proper air monitoring had been conducted when it had not. 

In late 2010, Ms. Copeland was found guilty in the Northern District of New York of mail fraud, conspiracy, and aiding and abetting violations of the Clean Air Act.  The government’s evidence largely consisted of biased testimony from “rip-and-runners” – the term for companies that do illegal asbestos abatement work – and other cooperators, which was improperly bolstered by the lead prosecutor throughout the trial.  While the defendants sought to explain that their belief that their monitoring was done properly was based on communications with the New York agency that oversees asbestos abatement, the trial judge precluded admission of those communications, erroneously ruling that it was hearsay.  Finally, in summation, the prosecutor made numerous improper comments.

Jenner & Block became involved in the case at the appeal stage – with both sides appealing, as the government believed the sentences the defendants received were unreasonable and incorrect.  Mr. Cipolla and Mr. Fischer argued the appeal and cross-appeal on June 14, 2013.  On May 28, 2014, the Second Circuit panel held that although the court would normally “hesitate” to overturn a jury verdict, when considering this record as a whole, they were compelled to vacate the conviction.

In addition to Mr. Fischer and Mr. Cipolla, the team consisted of Associates Carl N. Wedoff, Reid A. Aronson, Sarah R. McNally and Jacob L. Tracer and summer associate and incoming law clerk Gretchen Stertz.

The decision was reported in Law360 and on the front page of the New York Law Journal (available to subscribers).