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DIFFICULT COMPROMISE IN MOUSSAOUI CASE Last week’s ruling from the U.S. Court of Appeals for the 4th Circuit gives the government the green light to proceed with its case against alleged Sept. 11 co-conspirator Zacarias Moussaoui and to seek the death penalty. At the same time, the April 22 decision, written by Chief Judge William Wilkins Jr., rejects the Justice Department’s claim that national security concerns trump Moussaoui’s right to obtain testimony from captured al Qaeda operatives held by the U.S. military. Instead, the court, usually considered deferential to the government, struck a careful compromise, calling for the defense, prosecution, and Judge Leonie Brinkema of the U.S. District Court for the Eastern District of Virginia to agree on written statements that can be introduced at trial in lieu of live testimony. While the solution looks good on paper, it may be exceedingly difficult to put into practice, say lawyers familiar with the case. The plan, drawn up by Wilkins and Judge Karen Williams, starts with the defense team selecting the witness statements it would like to admit into evidence. The prosecution may then argue for additional material to be included in order to have a balanced presentation. Finally, Brinkema determines the set of substitutions based on the motions of both parties. In his partial dissent, Judge Roger Gregory wrote that the decision “places the district court in a thoroughly untenable position.” “We are asking the court to do something it has stated cannot be done,” Gregory wrote. Though the dispute does not technically fall under the Classified Information Protection Act (CIPA), the court used similar principles to fashion its remedy. “What the court of appeals has done, instead of following CIPA, is created a Classified Witness Protection Act,” says Moussaoui’s lead lawyer, Frank Dunham Jr., federal public defender for the Eastern District of Virginia. “They’ve basically taken it upon themselves to draft a statutory scheme.” Dunham’s co-counsel Edward MacMahon Jr. says the procedures laid out in the ruling are stacked against the defense. “I really don’t understand how we are supposed to enter into a process about what witnesses would say when we haven’t had a chance to interview them,” he says. The appeals court gave no deadline for the parties and Brinkema to agree upon the appropriate substitutions, but in his partial dissent, Gregory warned that he expected more disputes over sensitive testimony to come before the 4th Circuit before the case goes any further. “We are setting ourselves out as super-arbiters of the admission of evidence in this case,” Gregory wrote. — Vanessa Blum and James Oliphant LATE SUBSTITUTION Less than a week before oral arguments in one of the biggest cases of the Supreme Court term, the legal team for “enemy combatant” Jose Padilla switched gears and decided to have a new lawyer argue the case April 28: Stanford Law professor Jenny Martinez. Martinez, a former law clerk to Justice Stephen Breyer, replaces Donna Newman, Padilla’s longtime court-appointed lawyer. Why the last-minute switch? Newman says the reasons are “in-house stuff,” but she laughs off suggestions of intrigue behind the decision. “We drew straws — or the equivalent of drawing straws,” Newman says, adding somewhat contradictorily that “it was a matter, in the end, of deciding who would be the best person for the client. Jenny’s résumé is stellar.” Others close to the situation suggest that some in Padilla’s camp — including Yale Law School professor Harold Koh — thought a Supreme Court expert should make the case that Padilla has the right to challenge his detention in U.S. courts. When the Court on April 16 denied a motion for divided argument, debate intensified. “There was tremendous pressure on Newman not to argue,” says one lawyer close to the case. Martinez has not argued before the high court before, but is well-plugged-in, not only through Breyer but as a former aide to Judge Patricia Wald at the war crimes tribunal at The Hague, and three years at the D.C. office of Jenner & Block. — Tony Mauro SPECIAL OPS Patton Boggs has named partner Ira Fishman as the firm’s chief operating officer, succeeding John Abernathy. Abernathy plans to retire in June, but will remain with Patton Boggs as a consultant. “Patton Boggs is such a fast-growing and dynamic place,” says Fishman, 46. “I am going to continue to move us down that road.” The firm highlights Fishman’s experience in both business management and legal practice in announcing its decision. Managing partner Stuart Pape points to Fishman’s boundless energy and terrific people skills. “He will bring steadiness where steadiness is needed, and creativity where creativity is needed,” Pape says. — Bethany Broida THIS JUST IN The Justice Department’s former legal policy chief Viet Dinh has been elected to serve on the 14-member board of directors of the News Corp., the media conglomerate whose holdings include 20th Century Fox, Fox News, and the New York Post. Dinh, 36, is best known for his role in drafting the controversial USA Patriot Act. He left DOJ in May 2003 to resume as a law professor at Georgetown University Law Center. “Viet Dinh has had a remarkable career that has earned him the respect and admiration of legal scholars, politicians, and business leaders,” News Corp. Chairman and Chief Executive Officer Rupert Murdoch said in a release. Dinh says he connected with the company after speaking with 32-year-old Lachlan Murdoch, a News Corp. executive and the son of Rupert Murdoch, at a 2003 conference on national security and the media. According to filings with the Securities and Exchange Commission, News Corp. board members who are not also senior executives at the company, earn between $60,000 and $120,000 a year. — Vanessa Blum HOGAN’S HACKER A former computer specialist at D.C.’s Hogan & Hartson pleaded guilty last week to hacking into the firm’s computer system, deleting the e-mail of hundreds of employees, and disabling 651 BlackBerry devices. On April 23, Dennis Rosensteel Jr., 36, pleaded guilty to one count of computer fraud in the U.S. District Court for the District of Columbia. For three months last year, Rosensteel managed the firm’s remote computer networking system. On Dec. 19, Rosensteel was fired, in part for making unauthorized purchases of computer equipment, according to court papers filed by Assistant U.S. Attorney Sherri Schornstein. That same day, Rosensteel allegedly logged onto the firm’s computer system using a Hogan partner’s access code. Once in the system, Rosensteel allegedly disabled the BlackBerry devices and deleted all the e-mail of employees whose last names began with the letters A though F, according to court papers. George Mayo Jr., Hogan’s managing partner of operations, says no client data were compromised. Under federal sentencing guidelines, Rosensteel faces 10 to 16 months in prison, prosecutors say. Rosensteel’s lawyer, assistant federal public defender Leta McCollough, declines comment. — Tom Schoenberg QUICK CONVICTION A D.C. Superior Court jury last week convicted judicial activist Elena Sassower of one count of disrupting Congress. After a four-day trial, the jury deliberated for just two hours before finding Sassower guilty of the misdemeanor. The 47-year-old White Plains, N.Y., resident faces a maximum penalty of six months in prison and a $500 fine. The government argued that Sassower intentionally disrupted a Senate Judiciary Committee hearing in May 2003 when she stood up and asked to testify in opposition to a judicial nominee. Sassower, who defended herself, repeatedly challenged the rulings and patience of Superior Court Judge Brian Holeman during the trial. At one point, Holeman had Sassower locked up during the lunch hour. She says she will appeal, claiming the judge’s actions prevented her from receiving a fair trial by cutting short her opening remarks, closing argument, and direct testimony from the witness stand. Holeman declines comment, but at one point at the end of the trial the judge said to Sassower, “You had ample opportunity to put evidence forth in this case.” — Tom Schoenberg PENTAGONER The Pentagon announced a key personnel change last week to the team of lawyers preparing for terror trials before military commissions. Army Col. Frederic Borch III, the acting chief prosecutor, moves on next month to assume a top position at the Army Judge Advocate Legal Center and School in Charlottesville, Va. He will be replaced by Army Col. Robert Swann, chief judge of the Army’s 2nd Judicial Circuit at Fort Campbell, Ky. As a Pentagon lawyer in the late 1990s, Swann supervised the prosecutions over allegations of sexual misconduct at Maryland’s Aberdeen Proving Ground. In February 2004, Borch’s office brought the first war crimes charges against two individuals held at Guantanamo Bay, Cuba. The Pentagon has given no indication as to when their trials will be held. Retired Army Gen. John Altenburg Jr., who oversees the military commission process, says the transition should not delay the start of commission proceedings. — Vanessa Blum GOAL-LINE STAND The National Football League and its Covington & Burling lawyers showed a fierce defense last week in their effort to keep younger players out of the league. It paid off when two Supreme Court justices turned down Ohio State University running back Maurice Clarett‘s emergency petition to lift a stay imposed by the U.S. Court of Appeals for the 2nd Circuit that barred him from entering the April 24 NFL draft. “Mr. Clarett will have his day in the draft, but it won’t be this week,” said Covington partner and the NFL’s lawyer Gregg Levy afterward. In February, Judge Shira Scheindlin of the U.S. District Court for the Southern District of New York ruled that the NFL was violating antitrust rules by keeping out players not at least three years out of high school. The NFL appealed the ruling to the 2nd Circuit, and last week a three-judge panel of the court stayed Scheindlin’s ruling. Levy had a busy April representing the NFL. Between March 30 and last week, he briefed and argued on the merits of the case and the motion for the stay, and responded to the Supreme Court petition. Levy and three associates were working 14-hour days during the fast-moving appeal.” For the last three weeks, I haven’t done anything else,” Levy says. — Marie Beaudette PATENT PUSH A recently released report on the U.S. patent system recommends substantial changes, but whether the changes will be implemented remains a question. The study, conducted by the National Research Council of the National Academies, follows recent similar reports by the Federal Trade Commission and the U.S. Patent and Trademark Office. The National Academies’ version recommends more resources for the PTO, an open review procedure for third parties to challenge newly issued patents, and an exemption procedure for scientific researchers. One step has been taken toward implementing the proposals. The House of Representatives passed a bill in March that would provide more funds to the patent office. The bill is now before the Senate. — Christine Hines

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