Washington Lawyer

Legal Beat

From Washington Lawyer, January 2011

By Kathryn Alfisi and Thai Phi Le

News and Notes on the D.C. Bar Legal Community

2011 D.C. Bar Elections Open for Nominations
The D.C. Bar is accepting résumés from members wishing to be candidates in the 2011 Bar elections. The deadline for receipt of résumés is January 7.

The D.C. Bar Nominations Committee is charged with nominating individuals for the positions of D.C. Bar president-elect, secretary, and treasurer; five members of the D.C. Bar Board of Governors; and three vacancies in the American Bar Association (ABA) House of Delegates (including one for the under-35 seat). All candidates must be active members of the D.C. Bar; all candidates for ABA House positions also must be ABA members.

Nominations may be submitted online at www.dcbar.org/inside_the_bar/structure/nominations or mailed to the District of Columbia Bar Nominations Committee, Attention: Katherine A. Mazzaferri, 1101 K Street NW, Suite 200, Washington, DC 20005-4210.

For more information, contact Mazzaferri, the Bar’s chief executive officer, at 202-737-4700, ext. 3220, or executive.office@dcbar.org.

Bar Seeks Nominees for 2011 Rosenberg, Brennan Awards
The D.C. Bar is calling for nominations for its 2011 Beatrice Rosenberg Award for Excellence in Government Service and 2011 William J. Brennan Jr. Award. Both awards will be presented at the Bar’s Annual Business Meeting and Awards Dinner on June 30.

The Rosenberg Award is presented annually to a D.C. Bar member whose career exemplifies the highest order of public service. The Bar established the award in honor of Beatrice “Bea” Rosenberg, who dedicated 35 years of her career to government service and performed with distinction at the U.S. Department of Justice and the U.S. Equal Employment Opportunity Commission. She also served as a member of the Board on Professional Responsibility.

In keeping with the exceptional accomplishments of Ms. Rosenberg, nominees should have demonstrated outstanding professional judgment throughout long-term government careers, worked intentionally to share their expertise as mentors to younger government lawyers, and devoted significant personal energies to public or community service. Nominees must be current or former employees of any local, state, or federal government agency. For more information on the Rosenberg Award criteria, visit www.dcbar.org/rosenbergaward/rosenberg_info.#criteria

The Bar established the William J. Brennan Jr. and Thurgood Marshall awards in 1993, both of which are presented bi-annually in alternating years. Award recipients are recognized for their excellence, achievement, and commitment to civil rights and individual liberties. Candidates for the Brennan Award must be members of the D.C. Bar who have demonstrated excellence in dedication and commitment to public interest law.

Nominations for both the 2011 Rosenberg and Brennan awards should be submitted to Katherine A. Mazzaferri, Chief Executive Officer, District of Columbia Bar, 1101 K Street NW, Suite 200, Washington, DC 20005-4210. The last day of submission is February 11, 2011.

For more information about the Brennan Award, e-mail brennanaward@dcbar.org; for information on the Rosenberg Award, e-mail rosenbergaward@dcbar.org. Information for both awards can be found at www.dcbar.org/awards.

To learn more about the 2011 Annual Business Meeting and Awards Dinner, which will be held at the Mayflower Renaissance Hotel, 1127 Connecticut Avenue NW, visit www.dcbar.org/annual_meeting/index.cfm.

D.C. Public Defender Service Wins Frederick Douglass Award
douglassFor its 50 years of commitment to protecting society’s interest in the fair administration of justice, the Public Defender Service (PDS) for the District of Columbia was presented the 2010 Frederick Douglass Human Rights Award by the Southern Center for Human Rights (SCHR) on November 18.

Since its inception in 1960, PDS—then known as Legal Aid Agency—has provided quality legal representation for people who cannot afford an attorney in the District. The organization has become a strong advocate for equal justice for the indigent, and it serves as a model for other public defender offices.

Over the decades, PDS attorneys have handled criminal appeals, almost all parole revocation hearings, most Drug Court sanction hearings, and have represented people facing involuntary commitment in the mental health system, children with special education needs facing delinquency charges, and clients in civil proceedings triggered by their criminal charges or incarceration.

During his toast, John Rapping, founder and chief executive officer of the Southern Public Defender Training Center, spoke about the supportive community among public defenders and the value of their work. “Success for a public defender is being able to go to sleep each night, wake up each morning, look in the mirror, and honestly say, ‘I gave each and every client the representation they deserve, that we so often pay lip service to.’ If you can do that as a public defender, you are successful,” Rapping said.

Sara Totonchi, executive director of SCHR, later introduced PDS. “It is so clear that all of you in this room know how deeply PDS has fought to serve those who have been ignored, who have been discarded by our system,” she said. “PDS and SCHR share the same commitment to their clients, the same respect for the dignity of every person, and the same dedication for quality representation and equal justice.”

With her staff behind her, PDS director Avis Buchanan accepted the award. “For years, for the poor, justice was a dream deferred. In criminal cases and in D.C., you depended on the luck of the draw in your assignment of counsel and the quality that you got. In 1960, when the Legal Aid Agency was established, and in 1970, when the … agency became PDS, that dream [was] realized.”

Charles J. Ogletree Jr., chair of the SCHR board, served as master of ceremonies during the awards dinner. He was joined by Stephen Bright, president and senior counsel of SCHR, and members of various organizations who offered their own tributes to being a public defender and to the many successes of PDS.

The Frederick Douglass Human Rights Award highlights and honors some of the nation’s most celebrated defenders of human rights, and those who have shed light on some of the blatant abuses of the criminal justice system. In years past, honorees have included defenders of people on death row and Guantánamo Bay detainees.—T.L.

Bar Sections Announce Steering Committee Openings
The D.C. Bar Sections are seeking members interested in Steering Committee positions for all 21 sections. Members wishing to be considered should submit a Candidate Interest Form and résumé to the Sections Office by 5 p.m. Eastern Time on Thursday, February 3. Candidate Interest Forms were mailed and also are available online.

Steering Committee vacancies are for three-year terms. Each section has one, two, or three available positions.

The Sections’ Nominating Committees will review all Candidate Interest Forms to find the best qualified, diverse candidates. Two to three candidates will be nominated for each position. Previous leadership experience with voluntary bar associations or with the Bar’s sections is highly desirable.

The elections will take place in the spring of 2011, and the results will be announced in June. The winning candidates will assume their new Steering Committee roles on July 1, 2011.

For more information about the elections or to view the complete list of vacancies, visit www.dcbar.org/for_lawyers/sections_elections/index.cfm.

D.C. Community Court Honored at 2010 Momentum Awards
On November 9 the Superior Court of the District of Columbia’s Misdemeanor and Traffic Community Court was honored by Downtown D.C. Business Improvement District (BID) for its outstanding contributions to making the downtown area a better environment.

The court received the Partnership or Program Award at the annual Momentum Awards in recognition of its problem-solving approach to criminal justice as well as its effective partnerships with local organizations, including Downtown BID, to help defendants charged with quality-of-life and minor criminal traffic offenses fulfill community service hours as part of a court diversion program.

“I am proud of the work of the District’s Misdemeanor and Traffic Community Court, the judges, the staff, and all of our partners who have helped create a program that teaches defendants accountability and addresses their underlying issues while imposing community service that enhances the quality of life in our community,” Superior Court Chief Judge Lee F. Satterfield said.

Downtown BID also honored Douglas Jemal, president of Douglas Development Corporation, Downtown Citizen Award; Washington Kastles World Team Tennis, Downtown Experience Award; New York Avenue Sculpture Project, Downtown Detail Award; District Department of Transportation, Public Sector Person, Project, or Program Award; CoStar Group, Inc., Private Sector Person, Project, or Program Award; and 901 K Street, Landmark Development Project Award.

Downtown BID is a nonprofit organization dedicated to improving downtown D.C.’s public environment, economy, and social equity.—K.A.

Equal Justice Movers and Shakers
The Hispanic Bar Association of the District of Columbia (HBA-DC) held its 33rd Annual Equal Justice Awards Reception on November 4 where it recognized Hispanics in the judiciary, as well as individuals and organizations that have made outstanding contributions to the Hispanic community. Pictured from left to right are HBA-DC president-elect William Rivera, D.C. Court of Appeals Judge Vanessa Ruiz, D.C. Superior Court Judges Hiram Puig-Lugo and Marisa Demeo, U.S. Tax Court Judge Juan Vasquez, D.C. Superior Court Judges José López and Laura Cordero, D.C. Superior Court Magistrate Judge Aida Melendez, U.S. District Court for the District of Columbia Judge Ricardo Urbina, D.C. Superior Court Senior Judge Rufus G. King III, and HBA-DC president Kenia Seoane Lopez.—K.A.

Bar to Conduct Judicial Evaluations
The D.C. Bar Judicial Evaluation Committee has launched its 2010–2011 judicial evaluation program. This year, more than 4,800 attorneys are invited to evaluate the performance of 28 judges who preside over the District of Columbia Court of Appeals and Superior Court of the District of Columbia.

The selected attorneys have appeared before the judges in the 24-month period prior to the evaluation. Invited attorneys can submit a hard copy or online response. All participants will remain anonymous. The deadline for responses is January 28.

This year, the following D.C. Court of Appeals judges will be evaluated: James A. Belson, John W. Kern III, Frank Q. Nebeker, and John M. Steadman.

The following D.C. Superior Court judges will be evaluated: John M. Campbell, Russell F. Canan, Harold L. Cushenberry Jr., Carol Ann Dalton, Herbert B. Dixon Jr., Anthony C. Epstein, Henry F. Greene, John R. Hess, Alfred S. Irving Jr., Gregory Jackson, John Ramsey Johnson, Anita Josey-Herring, Richard A. Levie, Bruce S. Mencher, Zinora M. Mitchell-Rankin, Truman A. Morrison III, Thomas J. Motley, John M. Mott, Heidi M. Pasichow, Michael L. Rankin, Nan R. Shuker, Robert S. Tignor, Fred B. Ugast, and Curtis Von Kann.

Active judges are evaluated in their 2nd, 6th, 10th, and 13th year of service. Additionally, senior judges are evaluated during the second year of their four-year terms and once during their two-year terms (some serve four-year terms, others serve two-year terms).

Each evaluated judge, along with the chief judge of each court, will receive a copy of the survey results. Evaluation results of all senior judges and active judges in their 6th, 10th, and 13th year of service also will be sent to the D.C. Commission on Judicial Disabilities and Tenure.—K.A.

Honoring the Judiciary
David D. Fauvre, cochair of the D.C. Bar Litigation Section, welcomed judges and attorneys to the 25th Judicial Reception, honoring members of the federal and District of Columbia judiciary. Held on November 18 at the Mayflower Renaissance Hotel, the event was jointly sponsored by the Litigation Section and the D.C. chapter of the Federal Bar Association (FBA). The evening also featured remarks by Robie Beatty, president of the D.C. chapter of the FBA, and Darrell G. Mottley, president-elect of the D.C. Bar.—T.L.

Justice Breyer Discusses Book on Supreme Court’s Role in Democracy
United States Supreme Court Justice Stephen Breyer discussed his recently released book, Making Our Democracy Work: A Judge’s View, on November 10 at a forum hosted by The Brookings Institution.

By examining some of the Supreme Court’s most important and historic opinions, Breyer’s book explores the societal impact of the Court and its role in the evolution of the country’s democracy.

During the program, Breyer talked about his reasons for writing the book, the history of the Court, and efforts to apply constitutional values to current issues.

Breyer said he wrote the book so the public would have a better understanding of how the Court works. He said that when he was first appointed to the Supreme Court, his predecessor, Harry Blackmun, told him that the American public has a tremendous desire to learn about the Court.

“[W]hen you have the chance to tell people about the Court and what you do, tell them. And it isn’t some great secret enterprise. You can explain it,” Breyer said, adding that “it’s necessary to have public support for the institution, not necessarily for the decisions.”

For Breyer, the people will have to know about “this institution of an independent judiciary” in order for them to want it.

In talking about the history of the Court, Breyer mentioned Alexander Hamilton’s vision and his recognition that the country needed a separate judiciary that had the power to make the Constitution effective.

Breyer said it took a long time “and a Civil War and all kinds of things before the country and the Court evolved to the point where we’re at now … [where] we think that people will follow the Court’s interpretation of the Constitution.”

Among the landmark decisions Breyer included in his book, and which he discussed during the forum, were Cherokee Nation v. Georgia, Dred Scott v. Sandford, Korematsu v. United States, Brown v. Board of Education, and cases involving the “Little Rock Nine.” Breyer gave a personal and political context to the cases and admitted that the Court can be wrong (most pointedly in Dred Scott) because “they’re nine human beings, not nine angels.”

He said it was important that the Court did not take politics into consideration when deciding a case because “it’s not just wrong to hold your finger up to see which way the political winds are blowing, it is mad … because you won’t know which way they are blowing, nor will you as a judge know what’s the best thing to do even if you knew.”

“I want to give people a more realistic notion of what it is to use the word ‘politics’ next to the word ‘Supreme Court.’ I think there are many things going on that tend to give an incorrect or, at best, grossly exaggerated idea of the nature of those two concepts that one applied to the other,” Breyer said.

The Korematsu case was discussed in the context of the Guantánamo cases. Breyer said he wanted to “give people a little feeling for the uncertainties that are there in my job. . . . You’re often facing a kind of void where there are good arguments on both sides and a lot turns on it. And you cannot be certain that you are taking the right view.”

The forum was moderated by Brookings senior fellow Benjamin Wittes.—K.A.

Bar Members Must Complete Practice Course
New members of the District of Columbia Bar are reminded that they have 12 months from the date of admission to complete the required course on District of Columbia practice offered by the D.C. Bar Continuing Legal Education Program.

D.C. Bar members who have been inactive, retired, or voluntarily resigned for five years or more also are required to complete the course if they are seeking to switch or be reinstated to active member status. In addition, members who have been suspended for five years or more for nonpayment of dues or late fees are required to take the course to be reinstated.

New members who do not complete the mandatory course requirement within 12 months of admission receive a noncompliance notice and a final 60-day window in which to comply. After that date, the Bar administratively suspends individuals who have not completed the course and forwards their names to the clerks of the District of Columbia Court of Appeals and the Superior Court of the District of Columbia, and to the Office of Bar Counsel.

Suspensions become a permanent part of members’ records. To be reinstated, one must complete the course and pay a $50 fee.

The preregistration fee is $219; the on-site fee is $279. Dates are January 8, February 8, March 19, April 12, May 14, June 7, July 9, August 9, September 10, and October 4. Advanced registration is encouraged.

For more information or to register online, visit www.dcbar.org/mandatorycourse.

Off and Running Documentary Shines Spotlight on Adoption
adoptionTo highlight National Adoption Month, the Family Court Training Committee of the Superior Court of the District of Columbia screened the award-winning documentary Off and Running on November 17.

As the lights dimmed, a typical American teenager appears on the screen, talking about her family that she jokingly calls the United Nations. Avery is a black child adopted by Travis and Tova, two white, Jewish, and lesbian women. Her older brother, Rafi, is black and Puerto Rican, and her younger brother, Zay-Zay, is Korean.

At the beginning of the film, Avery is a track star living in Brooklyn with a stable group of friends and family. Her life, however, is thrown into turmoil after she writes to her birth mother, who initially responds, but eventually cuts off communication. The cameras follow Avery as she struggles to find her identity and tries to reconnect with black culture.

After the rejection by her birth mother, Avery begins skipping school. Her dedication to track begins to dissipate. Tensions escalate in her house to the point where she feels so out of place that she stops sleeping at home. Eventually, she finds herself as a high school drop out on her way to an abortion clinic. The strong ties Avery has with her brother Rafi, who is enrolled at Princeton and shares his own adoption experience, help her get her life back on track.

Off and Running was directed by Nicole Opper. The screening was in collaboration with PBS’ award-winning documentary series Point of View, television’s longest-running showcase for independent nonfiction films. Point of View premieres 14 to 16 innovative programs every year on PBS. Since 1988, it has presented more than 275 films to public television audiences across the country

For more information on this documentary, visit www.pbs.org.—T.L.

Solicited Opinions
opinionsPaul D. Clement, U.S. solicitor general from 2005 to 2008; John Garvey, president of The Catholic University of America; and Seth Waxman, U.S. solicitor general from 1997 to 2001, participated in the Columbus School of Law’s 42nd Annual Pope John XXIII Lecture at the Rev. William J. Byron S. J. Auditorium. This year’s lecture was titled “The Court at a Crossroads: A Conversation With Two Former Solicitors General.”—K.A.

Superior Court Celebrates 24th Annual Adoption Day
The Superior Court of the District of Columbia and the D.C. Child and Family Services Agency (CFSA) held their 24th Annual Adoption Day on November 15 at the H. Carl Moultrie Courthouse, where more than 20 adoptions were finalized in a ceremony emceed by WRC-TV news anchor Barbara Harrison.

The ceremony was held to celebrate National Adoption Day and to encourage area residents to consider adopting or fostering a child in D.C.’s child welfare system. There are approximately 160 children in foster care in the District awaiting adoption. 

“As judges, it is our job to pass judgment, and the judgment I have today for all our adoptive parents is that you’re wonderful for bringing these children into your homes. For the children, you make it all worthwhile. For all of you thinking of adopting, just stop thinking and do it,” Superior Court Chief Judge Lee F. Satterfield said.

Several guests took part in the celebration, including Debra L. Lee, president and chief executive officer of BET Holdings, Inc., who spoke about the importance of adoption, and Superior Court Magistrate Judge Kimberley S. Knowles, who recently adopted a son.

CFSA Director Roque Gerald, Family Court Presiding Judge William M. Jackson, and Freddie Mac Foundation Vice President Margaret Meiers also took part in the ceremony.

trendsSidley Austin’s Pro Bono Work Wins Man’s Freedom
After serving 15 years of four consecutive life sentences for a crime he did not commit, David Housler left prison on bail on October 4, 2010, thanks to the pro bono efforts of a team of lawyers from Sidley Austin LLP.

Housler was convicted in 1997 of being an accomplice in the well-publicized 1994 Taco Bell fast food restaurant murders in Clarksville, Tennessee. For years Housler had been appealing his case unsuccessfully before Sidley attorneys, led by partner Paul A. Hemmersbaugh, took over the case pro bono at the behest of the Tennessee Justice Project.

At the post-conviction relief proceeding, the Sidley team, which included associates Bryson L. Bachman, Michael L. Flanagan, James C. Owens, and Jason D. Vendel, presented evidence showing that Housler was erroneously convicted of the murders. The Sidley lawyers argued that Housler’s original prosecution and trial were fundamentally flawed, and that Housler was denied his rights under both the U.S. and Tennessee Constitution as well as other laws.

mini“I have to say that although we gave compelling evidence, I was not at all confident that we were going to win. The main reason for that is that the hurdles in habeas cases are so high because the person has already been convicted by a jury and the case has been all the way through the appeals process,” said Hemmersbaugh, who also serves as outside general counsel for the D.C. Bar.

However, after eight months and more than 10,000 hours spent working on the case, the team secured a ruling in September vacating Housler’s convictions and granting him a new trial. In October, the Sidley attorneys were able to get Housler released on bail, although Tennessee is appealing the latest decision.

Coerced Confession
By the time Housler went on trial in 1997, the murders were already notorious and the man responsible for killing four employees at the Clarksville Taco Bell, Courtney B. Mathews, was already convicted. Despite the fact that the prosecution in the Mathews case said he acted alone, the state of Tennessee convicted Housler for serving as a lookout for Mathews.

How did this happen? In part, Housler had the misfortune of being in the wrong place at the wrong time and associating with the wrong people. Housler was arrested for his suspected involvement in an unrelated robbery about a week before the Taco Bell murders. In 1995 Housler, acting on advice of his attorney that he might receive a reduction in bail if he could provide information on the murders, concocted a story for the police.

Almost two years later, the made-up story came back to haunt Housler when police interrogated him in long, intense sessions without his lawyer present, during which time he signed a 17-page detailed statement about his involvement in the crime.

“I think the principal difficulty for David Housler, and the reason he was convicted, was that he gave a statement that implicated him as being the getaway driver—this was his own statement, he signed it. For most people, the natural inclination is to believe that someone wouldn’t confess to something they didn’t do, which was what the prosecution pitched to the jury. The prosecution had one piece of evidence and one piece only, and that was a lengthy confession,” Hemmersbaugh said.

It was the job of the Sidley attorneys to show that Housler’s confession was coerced and should not have been allowed at trial, that Housler was denied a fair trial due to being repeatedly coerced and unfairly treated by police and prosecutors, and that he was deprived of effective legal representation.

One of the deciding factors for the jury in the original case, according to Hemmersbaugh, was that Housler’s attorneys never gave the jury any reason why he would admit to a crime he did not commit. During the post-conviction relief proceeding, Sidley attorneys hired an expert on false confessions, something which Housler’s lawyers “could have and should have done,” Hemmersbaugh said.

Housler’s original lawyer also allowed him to enter into a plea agreement that Hemmersbaugh described as “remarkably one-sided and gave all the power to the state and nothing to Housler.” That agreement was eventually used against Housler to indict him for first-degree murder.

Free Man for Now
While Circuit Judge John H. Gasaway III ruled in Housler’s favor—and even wrote a 244-page opinion—the state of Tennessee is appealing the court’s decision, declaring it legally erroneous.

If the state is successful, the case could go before an appellate court, which could reverse the trial court’s ruling and reinstate Housler’s conviction.

 “Housler is a little bit in limbo, but being in limbo and free is better than [being] in limbo and in jail,” said Hemmersbaugh.

In the meantime, Housler must follow the provisions of his bail, which includes checking in with his probation officer and not traveling a certain distance away from his home.

“He can’t have any repose or feeling that this is over and behind him until these appeals are all done, and if experience is any guide, this could take a number of years,” said Hemmersbaugh.

And while the Sidley team views Housler’s case as “an injustice that has been corrected or at least addressed,” Hemmersbaugh said that he senses much of the public thinks the decision was based on a technicality and “that a convicted murderer was just released.”

“Even though we got a ruling from the judge, I think there’s a strong bias in the appellate system in Tennessee in favor of preserving convictions. So we may have quite a battle yet in front of us at the appellate court,” he added.—K.A.

Reach D.C. Bar staff writers Kathryn Alfisi and Thai Phi Le at kalfisi@dcbar.org and tle@dcbar.org, respectively.