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HOPEFULS LINE UP FOR DA’S SECOND-IN-COMMAND Attorneys watching the heated Contra Costa County district attorney’s race from ringside seats have two burning questions: Who will be DA, and who will be his second-in-command? Both of the candidates say they haven’t made a decision yet. Being voted on today for DA are Robert Kochly, the office’s current chief deputy and Michael Menesini, a former Contra Costa prosecutor who is now an assistant district attorney in San Francisco. Some insiders expect that Kochly will choose from veteran and “level five” attorneys in the office. And Kochly said in a recent interview that he “would look at them first.” Said to be in the running are Paul Sequeira and Brian Baker, and both have taken high-profile roles in Kochly’s campaign. Sequeira has told several newspapers that he would quit if Menesini wins the election. If Menesini gets the top spot, the chief deputy position might go to Phyllis Franks, a veteran Contra Costa prosecutor who is among the few openly supporting Menesini. Matthew Guichard, an ex-prosecutor who ran unsuccessfully for DA in the five-way March primary, is another possibility. Guichard said in the past that he wasn’t interested in the job, but would be interested in being on Menesini’s transition team. Others are expecting Menesini to pick an outsider from another DA’s office to be second in command. There also have been rumblings that Thomas Powers, a Contra Costa supervisor-turned-consultant, would take some role in Menesini’s administration. Menesini has praised Powers, a lawyer, for his political acumen. “Tom is peerless in his knowledge of county operations,” said Menesini, who is currently the mayor of Martinez. Menesini didn’t say, however, whether or not Powers would be on the DA’s payroll. — Jahna Berry PEACEMAKERS The 9th Circuit has seemingly stepped back from findings of misconduct leveled against a local federal prosecutor, though it has done so on wobbly legs. Most of the portions of United States v. Blueford, 02 C.D.O.S. 10764 , that were critical of Assistant U.S. Attorney Jonathan Schmidt were removed in an amended opinion filed last week. Formerly harsh passages were made bland, and Schmidt is likely safe from rebuke from either the State Bar or the Justice Department’s Office of Professional Responsibility. But curiously, critical words were left in near the end of the opinion. And stranger still, the panel denied a call to rehear the case en banc — a call which, in fact, was never made. The U.S. attorney’s office backed Schmidt after the 9th Circuit held that he made deliberate misrepresentations of the evidence during a felon-in-possession case. It asked the panel to reconsider the decision. Schmidt himself filed an amicus curiae brief in an effort to protect his reputation. Hastings College of the Law professor Rory Little, who used to be appellate chief of the U.S. attorney’s office, stepped in to serve as Schmidt’s lawyer. Schmidt’s brief admitted that “mistakes were made” but argued that prosecutorial error didn’t always rise to the level of misconduct. It also said that the incident has cause Schmidt “tremendous personal anguish.” In addition, Schmidt had the backing of the 1,600-member National Association of Assistant U.S. Attorneys. Milberg Weiss Bershad Hynes & Lerach partner Sanford Svetcov, one of the best 9th Circuit appellate lawyers around and himself a former AUSA, represented the group pro bono in filing its own amicus brief. Although the court remained critical and did not reverse its decision to overturn Roy Blueford’s conviction, it did tone down the language. In one footnote, for example, the wording is changed from “prosecutorial misconduct of the kind here” to “prosecutorial conduct of the kind here.” There are numerous similar deletions throughout. But at least one passage using the word “misconduct” remains. Some lawyers following the case are scratching their heads — both about the copy editing and the fact that the court circulated and rejected a petition for rehearing en banc which was never actually submitted. — Jason Hoppin LEGAL LESSONS Recently, a small group of students from San Francisco law schools appeared in two courtrooms at the 9th U.S. Circuit Court of Appeals to litigate a racial discrimination lawsuit. Hailing from Hastings College of the Law, University of San Francisco School of Law, Golden Gate University School of Law and San Francisco Law School, the students had prepared the trials from start to finish. They presented their arguments, examined and cross-examined witnesses and presented closing arguments. Coached by federal public defender Geoffrey Hansen and criminal lawyer Terry Diggs, the Hastings team took top honors for the first time in its three years of existence. Students had to do most of what a trial attorney has to do, and members of the Hastings trial team said they found the experience much more fulfilling than moot court, which is modeled on arguing in an appellate court. “It’s a chance for real-life experience,” said Moira Feeney, 26, a second-year student at Hastings who was on the 11-member team. “Many people in their careers won’t have the chance to argue in appellate court — we’re learning to be trial attorneys.” “The victory is especially important because we’re so new, and we’re trying to bring recognition to the importance of practical training in law school,” said coach Hansen. “As an attorney who is in court every day, I have always believed that the development of practical trial skills should be an integral part of the law school curriculum.” The Hastings team is now preparing to compete nationally next month at the Lone Star Classic in San Antonio, Texas. — Jason Dearen JUST IN CASE While it’s nothing compared to the vast amounts of money being raised in the state’s gubernatorial campaign, more than $322,000 for a non-contentious judicial retention election isn’t too shabby. As of Oct. 24, California Supreme Court Justice Kathryn Mickle Werdegar, appointed in 1994, had raised that amount in her bid for 12 more years on the bench, according to figures kept by the secretary of state’s office. And more than $121,000 of it came out of Werdegar’s own pockets. But is that overkill for a race in which Werdegar faces no opposition of any sort? “You have to look at if from the perspective that you’re running a statewide campaign,” says Mieczyslaw “Mitch” Zak, a spokesman for the justice’s campaign committee. “Given the fact that you’re trying to reach upwards of between 5 million and 12 million voters, it’s really pretty economical.” Perhaps so, but fellow Justices Marvin Baxter and Carlos Moreno, who are also facing retention votes, chose the economical path of forming no campaign committees and taking no contributions. Neither felt overly threatened for their seats, and Baxter said he was ethically opposed to seeking contributions. Werdegar prefers to have her campaign people speak for her, and they say she organized a committee as a proactive step in case anyone actively challenged her — as happened to Chief Justice Ronald George and Justice Ming Chin in 1998 when conservative factions targeted them for their votes on certain sensitive issues. Both won retention handily after spending thousands of dollars on campaigns. Werdegar has done no high-profile campaigning — no commercials, for example — and has limited her committee mostly to direct voter contact via mass mailings. Still, she has managed to spend nearly $229,000, according to the secretary of state, with much of it going toward slate mailers and her campaign consultants at Sacramento’s Randle Communications. Contributions in the last three months have come in from some high-powered sources. Among them were Heller Ehrman White & McAuliffe partner Joanne Garvey, Keker & Van Nest partner John Keker, Wilson Sonsini Goodrich & Rosati partner Larry Sonsini and U.S. Sen. Dianne Feinstein, each donating $1,000, as well as former San Francisco U.S. Attorney Joseph Russoniello and Morrison & Foerster partner James Brosnahan, with $250 each. A $100 donation came in from an unusual source: Amanda Brown, author of the novel “Legally Blonde,” which became a hit movie starring Reese Witherspoon. Werdegar doesn’t know Brown, campaign spokesman Zak says, but she was a fan of the movie. — Mike McKee

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