Inadmissible: Judges Differ on Detainees; Laury Gordon Estrada Dies; and More

JUDGES TAKE DISTINCT TACKS IN TERROR CASES Senior Judge Joyce Hens Green and Judge Richard Leon preside over courtrooms on opposite ends of the second floor at the U.S. District Court for the District of Columbia. Green, appointed to the bench by President Jimmy Carter in 1979, runs hers like a patient schoolteacher, gently prodding lawyers for more information. Leon, a George W. Bush appointee confirmed in February 2002, has a more aggressive style, often playing devil’s advocate and challenging counsel before him. Last week, both judges weighed the claims of prisoners challenging their confinement at Guantánamo Bay, Cuba, and considered what limitations, if any, U.S. courts should place on the president’s ability to capture and detain individuals in the war on terror. Green had been overseeing all the Guantánamo cases since September, but in late November, Leon indicated that he would rule independently on the matters assigned to him. Deputy Associate Attorney General Brian Boyle, representing the government, told both judges that the habeas claims brought by the prisoners must be rejected because the detainees have no legal rights. Not surprisingly, Leon appeared more sympathetic toward the government’s position. During a Dec. 2 hearing on the government’s motion to dismiss the detainees’ claims, Leon expressed concern that judicial intervention might impede ongoing military operations. He asked the detainees’ lawyers whether launching a judicial inquiry into military detentions at Guantánamo Bay would require the disclosure of classified evidence. Leon also suggested that the Pentagon might detain someone based on faulty intelligence without violating any law. “Do you see a difference between the military acting mistakenly, perhaps even negligently . . . versus acting unlawfully?” Leon asked. Green, who heard arguments Dec. 1, seemed more skeptical of the government’s case and presented dramatic examples to probe the breadth of the Pentagon’s authority to designate someone an enemy combatant. Green asked whether the Pentagon definition of an enemy combatant would apply to a little old lady in Switzerland who donated money to an organization that she believed was helping orphans in Afghanistan, but that was really funneling money to al Qaeda. (Boyle conceded that the woman could be considered an enemy combatant.) The hearings came as a result of a June Supreme Court ruling that federal courts have jurisdiction to hear habeas corpus claims brought by prisoners at Guantánamo Bay. Roughly 60 detainees now have claims pending before the District Court. While the dual arguments create the possibility of inconsistent rulings, lawyers involved in the cases say that any decision is likely to be appealed to the U.S. Court of Appeals for the D.C. Circuit. — Vanessa Blum SUDDEN LOSS Shock rippled through the legal community last week with news of the sudden death on Nov. 28 of former Justice Department lawyer Laury Gordon Estrada, 46, the wife of Gibson, Dunn & Crutcher partner Miguel Estrada. He found her dead in her sleep at their Old Town, Alexandria home. No cause of death has yet been determined. Results of a legally required investigation by the state medical examiner are “pending,” says a spokeswoman. “We may never know the reason,” says one friend, who adds that Laury Estrada had no significant history of illness. A native of Birmingham, Ala., Laury Estrada worked in several jobs at Justice since 1992, and until September 2003 was an assistant U.S. attorney in the Eastern District of Virginia. She left, according to her husband, to care for her ailing mother. “Laury was an extraordinarily kind-hearted person and a bright and dedicated lawyer,” says U.S. Attorney Paul McNulty. She met Estrada in 1996 at the Justice Department gym — they shared a trainer — and seven months after their first date, they married. Estrada last year withdrew as a nominee to the U.S. Court of Appeals for the D.C. Circuit. Gibson, Dunn partner Mark Perry, a longtime friend of the couple, described her as “a gracious, vivacious, caring young woman who loved her animals, her family, and her friends.” She owned a horse, adopted three Dobermans — Zeus, Ruby, and Jackson — and was an ardent supporter of Doberman Assistance, Rescue and Education Inc., where her family asks that donations be sent. “This has been devastating for Miguel. They had a phenomenal relationship,” says Arnold & Porter partner Robert Litt, another friend. Gibson, Dunn issued a statement after her death: “We are all saddened by the untimely death of our dear friend Laury Estrada, the wife of our valued partner Miguel Estrada.” — Tony Mauro ROADBLOCK An effort by a local lawmaker to allow D.C. offenders to file habeas petitions in the D.C. courts has hit a snag. Since 2000, nearly all felons convicted in D.C. Superior Court serve their sentences in facilities across the country that is managed by the U.S. Bureau of Prisons. The U.S. Supreme Court ruled this summer that federal inmates must file habeas petitions in the federal court in the jurisdiction where they are physically housed. D.C. Councilwoman Kathy Patterson, chair of the Judiciary Committee, introduced legislation intended to allow D.C. offenders the opportunity to file habeas challenges to parole decisions and computation of good time credits in D.C. Superior Court. At a hearing on the bill last month, federal prosecutors argued that only Congress had the authority to make such a change. On Nov. 29, D.C. Attorney General Robert Spagnoletti issued a legal opinion concluding the legislation is “legally unsupportable.” Patterson says she is still awaiting an opinion from the council’s lawyer, but that she may introduce a resolution requesting Congress’ intervention. — Tom Schoenberg DAYS OF WINE AND BEEF At the Supreme Court, they are calling it Morton’s Week. Cases involving beef and wine dominate the high court’s docket this week. The beef case, set for argument Dec. 8, was brought by livestock ranchers who object to being dunned a federal fee to pay for the “Beef. It’s What’s for Dinner” promotion. It will be the third marketing program to be scrutinized by the Court, and it comes down to the somewhat metaphysical question of whether beef is more like mushrooms (whose marketing program was struck down in 2001) or California fruit (whose program was upheld in 1997). The wine argument set for Dec. 7 will decide whether states, under the 21st Amendment, may erect trade barriers against interstate sales of wine directly to consumers — sales that would otherwise be permitted under the Constitution’s commerce clause. Kenneth Starr, of counsel at Kirkland & Ellis, has been a highly visible advocate for the wine makers, who want the barriers relaxed. But Starr won’t be arguing the case to the Court; Stanford Law School professor Kathleen Sullivan won the honors after a Nov. 10 moot court and “beauty contest” in Phoenix before a high-powered panel of “judges” that included Carter Phillips of Sidley Austin Brown & Wood and Beth Brinkmann of Morrison & Foerster. “We decided [on Sullivan] as a community, including Ken,” says Tracy Genesen, legal director of the wineries’ Coalition for Free Trade and of counsel at Nossaman Guthner Knox & Elliot in Sacramento. “There were no sparks, no underlying agendas.” — Tony Mauro BROAD BRUSH In a surprise move last week, the Supreme Court announced it will review a key telecom case that could decide whether broadband cable Internet service will be regulated with a light or heavy hand. The issue in Federal Communications Commission v. Brand X Internet Services is whether cable modem service should be treated as a largely unregulated information service or as a telephone-like telecommunications service that can be forced to make its lines available to competitors. Consumer groups and telephone-based Internet providers like the telephone model because they say it would prevent cable from monopolizing Internet access. The FCC voted for the less-regulation option sought by cable operators, but the U.S. Court of Appeals for the 9th Circuit in October 2003 disagreed. “High-speed Internet connections are not telephones, and I’m glad the Supreme Court has agreed to review the 9th Circuit’s ruling that they are,” FCC Chairman Michael Powell said Dec. 3. The high court held its regular private conference on Dec. 3 to discuss cases, but no announcement was expected until after press time. The Court may have wanted to give telecom lawyers an extra weekend to prepare for arguments, which will likely be set for the third week in March. — Tony Mauro GOING FREE Walter Arvinger was a teenager when he went to jail for a murder he didn’t commit. Granted clemency from his life term by Maryland Gov. Robert Ehrlich last week, Arvinger, now 54, was freed after an 18-month effort on his behalf by University of Maryland law professor Michael Milleman and 28 law students. The Maryland team showed that Arvinger’s attorney, Morris Lee Kaplan (since deceased), committed a host of mistakes in a murder trial that lasted just three hours. Among them: waiving Arvinger’s right to a jury trial, failing to challenge an incorrect map of the crime scene, and not introducing testimony exonerating Arvinger from a co-defendant’s trial. Chrys Kefalas, deputy counsel in Ehrlich’s office, says the governor would consider a pardon request on Arvinger’s behalf. Should that happen, Arvinger could be eligible for compensation from the state. Another Maryland man wrongly convicted of murder, Michael Austin, was released from jail in 2001 after serving 27 years. He was pardoned last year by Ehrlich and last month was awarded $1.4 million. — Jason McLure AND THE WINNER IS . . . The D.C.-area legal community singled out eight lawyers for special recognition last week in Legal Times‘ first annual Leading Lawyers Awards. Over the past two years, the staff of Legal Times has conducted hundreds of interviews with legal peers and clients to designate groups of “Leading Lawyers” in each of eight categories. Over the past month, members of the legal community were allowed to vote for one lawyer in each field to receive top honors. The results were announced at a ceremony Dec. 1 at the Willard InterContinental Hotel. The top vote-getters were: Rand Allen of Wiley Rein & Fielding, Government Contracts; Connie Bertram of Venable, Labor and Employment; David Osnos of Arent Fox, Real Estate; and Alban Salaman of Holland & Knight, Trusts and Estates. Four lawyers from Wilmer Cutler Pickering Hale and Dorr also won top honors. They were: Seth Waxman, Appellate Litigation; Thomas Olson, Intellectual Property; Howard Shapiro, Litigation; and William McLucas, Securities. How did Wilmer do it? “We did nothing more than alert people in an e-mail or two and encourage them to vote,” says firm co-chair William Perlstein. “We have great success in getting people around here to show the flag,” he says, adding that the firm has had similar triumphs in rallying participation in United Way and Generous Associates campaigns. The honored Wilmer lawyers, Perlstein concludes, “thought that the [original] list was spectacular and they were thrilled to be on it.” — Eva Rodriguez