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MOUSSAOUI RULING HAS A FAMILIAR FEEL Caution: Upon reading the latest appeals court decision in the case of alleged 9/11 co-conspirator Zacarias Moussaoui, you may experience a sense of déjà vu. Entire sections of the Sept. 13 ruling are identical to an April decision handed down in the case by the same three-judge panel of the U.S. Court of Appeals for the 4th Circuit. Why the sequel? Last week’s ruling permits Moussaoui’s defense team for the first time to direct questions through interrogators to captured al Qaeda operatives in U.S. custody. The appeals court opened the new avenue for questioning the detainees after prosecutors revealed that members of their team had received similar access. Though the relevant portions of the ruling are heavily redacted, sources familiar with the full opinion confirm that Moussaoui’s lawyers will be allowed to feed questions for the detainees to government interrogators. Yet there is no guarantee that the defense lawyers’ questions will be asked. The lawyers will receive summaries of the interrogations prepared for the intelligence community, and they may or may not contain answers to the questions. The three-judge panel held to its earlier ruling that Moussaoui’s constitutional right to compel testimony from witnesses must be balanced against the government’s national security interests. A majority made up of Chief Judge William Wilkins Jr. and Judge Karen Williams determined that prosecutors may still seek the death penalty for Moussaoui. In a partial dissent, Judge Roger Gregory argued that the government should be prevented from seeking the death penalty if it prevents defense lawyers from directly questioning the witnesses. Last year, U.S. District Judge Leonie Brinkema barred prosecutors from seeking Moussaoui’s execution after the government refused to make detainees available for remote, videotaped depositions. Virginia Federal Public Defender Frank Dunham Jr., Moussaoui’s lead defense lawyer, says the defense will decide this week whether to appeal the ruling. “The fundamental question here is: If the defendant has the right to use the court’s compulsory process to access witnesses, can you use, as a substitution for that testimony, unnamed, unsworn government summaries?” Dunham says. “I don’t think the Sixth Amendment allows for that.” Last week was a busy one for Dunham, who also represents Yaser Esam Hamdi — the U.S.-born terror suspect picked up in Afghanistan and held as an enemy combatant for more than two years. Dunham says Hamdi has signed an agreement whereby he would avoid prosecution in the United States and return to Saudi Arabia. “There is an agreement. Mr. Hamdi has signed. The government has not yet signed it,” Dunham says. — Vanessa Blum LONDON CALLING Partners of Kirkpatrick & Lockhart and the U.K.’s Nicholson Graham & Jones will vote this week on a merger, says Kirkpatrick chairman Peter Kalis. If they approve, Kirkpatrick will change its name to Kirkpatrick & Lockhart Nicholson Graham, Kalis says. He says he is confident partners on both sides of the Atlantic will back the deal. The union would join Kirkpatrick’s 800 lawyers in 10 U.S. offices (including 150 D.C. lawyers) with Nicholson’s 135 in London. Kalis met with Nicholson chairman Michael Johns in March, and soon after, firms started negotiations. Kirkpatrick is no stranger to law firm unions. It merged with Boston’s Warner & Stackpole in 1999 and acquired Los Angeles’ Freshman, Marantz, Orlanski, Cooper & Klein in 2000 and Dallas-based Wolin, Ridley & Miller in 2001. — Christine Hines CLEARED The dramatic twists continue in the Jay Lentz murder case. On Sept. 14, the U.S. Court of Appeals for the 4th Circuit found that Steven Mellin, an assistant U.S. attorney in the Eastern District of Virginia, did not commit misconduct while prosecuting Lentz, who was convicted last year of kidnapping and killing his ex-wife. The ruling also removed U.S. District Court Judge Gerald Bruce Lee from the case and ordered a new trial for Lentz. Earlier this year, Lee concluded that Mellin had committed serious misconduct by intentionally placing inadmissible evidence before the jury while it deliberated Lentz’s fate. Mellin vigorously fought the charge and was publicly backed by U.S. Attorney Paul McNulty. The court found Lee’s conclusions about Mellin were “unsupported by the evidence and clearly erroneous.” William Sullivan Jr. of Winston & Strawn, who represents Mellin, says the ruling “now enables Steve to take the first step in reclaiming his well-deserved and just reputation as a thorough and fair prosecutor.” — Tom Schoenberg MISSION FOR MARTHA Former acting Solicitor General Walter Dellinger III was putting the finishing touches on a 120-page appeal brief for lifestyle diva Martha Stewart last week when he got the call: Stewart decided she wants to serve her jail time on her securities-related conviction before her appeal plays out. It came as no surprise, though, and the appeal continues, says Dellinger, a D.C. partner at O’Melveny & Myers. He says he has met with Stewart in New York or the District almost weekly in recent months to discuss appeal strategy, and he did not try to dissuade her from trying to get her jail time over with. “There is a significant chance of success of reversing her conviction,” says Dellinger. “But, realistically, that would take a year and a half.” Working with Stewart has been an intriguing detour from Dellinger’s usual diet of corporate appellate work. “She is a very impressive person who has a lot of ambitions for her company at a time when others might have just wanted to retire,” Dellinger says. — Tony Mauro JUDGING THE BUDGET Chief Justice William Rehnquist donned his lobbying hat last week to urge Senate action on the judiciary’s 2005 funding request. In a letter to Senate leaders, Rehnquist said passing only a continuing resolution to keep funding at 2004 levels would be “devastating to the judiciary,” possibly triggering the firing of “thousands of valued employees.” The judiciary requested $5.7 billion for 2005, but Rehnquist asked the Senate at least to match the House, which approved a $5.5 billion budget to keep services at current levels. Under last year’s $5.4 billion budget, the courts fired 145 employees and paid buyouts to 268 others, according to the Judicial Conference. The Judicial Conference, the policy-making arm of the courts, will discuss the budget at a Sept. 21 meeting. — Tony Mauro THE MASTER CARD The U.S. Court of Appeals for the D.C. Circuit refused Sept. 14 to remove U.S. District Judge Royce Lamberth from presiding over contempt proceedings stemming from a class action brought by Native American tribes against the Department of the Interior. The class action claims the government mishandled tribe members’ trust accounts. Current and former officials at the Interior and Justice departments — facing civil contempt for violating discovery orders, among other things — petitioned to remove Lamberth, court records say. They claim Lamberth acquired personal knowledge of disputed facts through private discussions with two special masters assigned to the case. Lamberth acknowledges talking with the masters, but says the meetings were not improper. The D.C. Circuit agreed, but ruled reports prepared by one of the special masters may not be submitted to the court. — Bethany Broida OVERTURNED The U.S. Court of Appeals for the Federal Circuit granted the patent bar’s wish last week when it overturned 20 years of precedent in Knorr-Bremse v. Dana Corp. For years, many lawyers complained that attorney-client privilege was being eroded when courts forced companies to disclose legal opinions that determined whether they were infringing a patent. But the Federal Circuit held that courts shouldn’t presume that a company infringed a patent when it fails to obtain such an opinion or fails to disclose one. Some say the new ruling may slow down opinion-writing practices at intellectual property law firms. “If there’s a clear case of no infringement, or invalidity of the patent, then companies may decide not to seek an opinion,” says Linda Alcorn of Sterne, Kessler, Goldstein & Fox. But Michael Dzwonczyk of Sughrue Mion says the decision may “stimulate opinions because [clients] can now solicit advice of their counsel without worrying that they will have to disclose it.” — Christine Hines LEARNING CURVE The class action filed against the Titan Corp. and Arlington, Va.-based CACI on behalf of torture victims at the Abu Ghraib prison entered a new phase Sept. 14. The plaintiffs’ attorneys requested a preliminary injunction against CACI that would force the government contractor to withdraw all “untrained” interrogators from Iraq and use Army standards to train future interrogators. Susan Burke, a partner at Philadelphia’s Montgomery, McCracken, Walker & Rhoads, says the injunction is necessary because her team has discovered that abuse of prisoners continued as late as July, two months after the initial scandal broke. A hearing on the injunction is expected in the next several months in a San Diego federal court. CACI’s lawyers, J. William Koegel and John O’Connor of Steptoe & Johnson, are citing 1973′s Gilligan v. Morgan, which stemmed from Vietnam protests at Kent State University. In Gilligan, the Supreme Court rejected an injunction to halt Ohio’s governor from using National Guard troops to quell future protests. — Jason McLure AIMING HIGH The military lawyer representing alleged al Qaeda accountant Ibrahim Ahmed Mahmoud al Qosi plans to seek oral depositions of former Presidents George H.W. Bush and Bill Clinton and former Secretary of State Madeleine Albright, court filings show. Air Force Lt. Col. Sharon Shaffer also indicated she would file motions challenging the legitimacy of the charges and the military commission’s handling of the case. When President George W. Bush authorized using military commissions to try alleged al Qaeda agents, the goal was to provide no-fuss trials for terror suspects. Instead, observers say, the trials will likely be every bit as contentious as high-profile criminal trials in civilian courts. Al Qosi is scheduled to go to trial Dec. 7, but a backup trial date has been set for Feb. 8, 2005. — Vanessa Blum BIRTHDAY BASH Hogan & Hartson, D.C.’s largest law firm, turns 100 this month and is marking the milestone with a Sept. 23 event that features music, cocktails, and views of the D.C. skyline from the rooftop of Hogan’s downtown offices. Planners designed a menu paying tribute to each of the firm’s 21 offices nationwide. Revelers will dine on everything from Baltimore crab cakes to Cuban sandwiches from Miami. “We are very proud to reach 100,” says J. Warren Gorrell, Hogan’s chairman. “It is a very rare thing, and the party is a way to thank our clients and friends as we look forward to another 100.” — Bethany Broida

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