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James Barney looked a little nervous, and you could hardly blame him. Standing in Room 311 in D.C. Superior Court, he was about to question his first witness in a case where his client faced life in prison. It was Barney’s first murder trial. In fact, it was his first criminal trial. Actually, it was practically his first trial of any kind. James Barney is a patent attorney. What’s a 37-year-old IP lawyer doing cutting his trial teeth on a major murder case? It’s part of an innovative pro bono program run by Finnegan, Henderson, Farabow, Garrett & Dunner designed to give its young patent litigators courtroom experience. Headed by Mary Kennedy, a former public defender with two decades of criminal experience, the program represents defendants accused of everything from shoplifting to first-degree murder. Despite their inexperience, the young patent lawyers have racked up a pretty impressive track record during the past four years. To date, not a single murder defendant represented by the firm has been convicted on the most serious charge. Barney is determined that his client, Antonio Clark, won’t be the first. LEARN BY DOING Finnegan’s Litigation Mentor Program began four years ago, the brainchild of a group of partners who wanted to get their young lawyers into court more often. Patent litigation is a notoriously long and expensive process, and cases rarely end up making it to court. Given these circumstances, it can take a litigator many years to gain enough experience to actually lead a trial. So the firm, which focuses exclusively on intellectual property law, struck upon the program as a novel way of getting its attorneys into trial while also doing needed pro bono work. Volunteers must attend a 10-hour training session that gives an overview of criminal procedure. As cases become available, the attorneys work one-on-one with Kennedy, who provides support and guidance. “I am available every step of the way,” she says, “but it is the lawyer’s case. For some, depending on their experience, I will do nothing, but the most I will do is half.” Support is also provided by others at Finnegan. Lawyers in the program practice their opening statements in front of a mock jury of firm attorneys, paralegals, and even secretaries, who offer advice and suggestions. Finnegan attorneys also play the role of the prosecution, conducting simulated cross-examinations of defendants and witnesses. So far, about 45 Finnegan attorneys have been through the training session, but not all have taken on cases. Kennedy estimates the firm has agreed to represent about 50 clients in D.C. Superior Court since the program started, in 2001. The majority of cases come through Criminal Justice Act appointments. “We show up to take cases in Courtroom C-10, like everyone else,” Kennedy says. Some of the more serious cases, however, are referrals from other attorneys who are conflicted out of a case, or come from judges who know about the program and Kennedy’s reputation. Bernie Grimm, a D.C. criminal defense attorney, has turned over two clients to Kennedy’s program, and he says the firm did “an amazing job.” Because Kennedy is personally involved in all of the cases taken through the program, she says she must limit the caseload the firm accepts. On average she has between eight and 12 open cases at any given time. A key to the success of the Finnegan program, many criminal defense lawyers agree, is Kennedy. Mark Rochon, a partner at Miller & Chevalier and the former trial chief for the D.C. Public Defender Service, says her presence is essential. “Most law firms should not be doing this,” he says. Kennedy has spent her entire career as a criminal defense attorney for indigent clients. For 11 years she worked at the D.C. Public Defender Service, the last four training new PDS and court-appointed attorneys. She was also the director of the Federal Defender Training Group, where she trained attorneys working in the federal courts. “Mary is great,” says Grimm, a former colleague who saw Kennedy in action at the PDS. “I have seen her with young Ivy League attorneys, and she is great at positive reinforcement. She has an unending amount of patience.” Even prosecutors laud her abilities. “Ms. Kennedy is a worthy, experienced, and skilled trial lawyer, who understands the rigors of the trial arena,” Principal Assistant U.S. Attorney Channing Phillips said in an e-mail. She was recruited by Finnegan to run the program � a job offer Kennedy describes as “too good to be true.” Rochon says that the training that Kennedy provides her lawyers is not that dissimilar from the training new PDS attorneys receive, in that there is mentoring and help from an experienced attorney. He thinks the overriding feeling within the D.C. criminal bar is that defendants are well represented through the Finnegan program. Other defense attorneys agree they feel comfortable with the program because of Kennedy’s expertise. “If other firms got into it, I would wonder where the supervision is coming from,” says Richard Gilbert, past president of the D.C. Association of Criminal Defense Lawyers. “I am very confident with Mary Kennedy supervising, the clients will not suffer.” But Gilbert stops short of endorsing a Finnegan-style program for other D.C. firms. He says that in addition to potential problems with adequate supervision, there are financial issues for the local criminal bar. “Surely there will be economic concerns if more firms got into doing this,” he says, alluding to the fact that many attorneys rely on CJA appointments for their livelihood. But Grimm says there are so many felony-one cases in the system, and cases like those are so time-consuming to try, that “this is not taking money out of their pocketbook.” Currently, there are seven firms, including Finnegan, eligible to receive CJA appointments, according to the court system. Most of the firms, however, are not eligible to take felony-one cases, or only certain experienced criminal attorneys at the firm are able to accept felony-one appointments. PERSONAL INVOLVEMENT Representing people accused of murder is certainly not standard fare for Finnegan attorneys, and Barney is keenly aware that the stakes in representing Antonio Clark are higher than they will be with anything he will ever deal with in his patent practice. “The fact that Mr. Clark is facing life in prison makes it much more personal,” Barney says. During Clark’s trial, staff from Finnegan dropped by regularly to provide support and to check on how things were going for the seven-year associate. Barney’s mom even showed up to see her son deliver his first-ever opening statement and closing argument. Clark is no choir boy. He is a convicted felon accused of gunning down his drug-dealing roommate. His first trial ended in a hung jury. Barney and Kennedy took over the case for the retrial, which began this month. At trial, Assistant U.S. Attorney Steven Snyder told the jury that Clark killed Kevin Turner because Turner refused to move out of the apartment. The government claimed Clark shot Turner three times with a double-barreled shotgun. One of the government’s witnesses, Regina Turner (no relation to the victim), testified that Clark gunned down Turner right in front of her. But the defense called her a scorned ex-girlfriend who was seeking to pin the shooting on Clark out of revenge, arguing she persuaded two friends to back up her story. Though Barney left the cross-examination of Turner to Kennedy, he found his footing as the trial progressed, becoming more actively involved and even lodging a few objections to the prosecutor’s questions. In addition, he got the medical examiner to testify that the victim was shot at close range, not from about 20 feet away, as Turner had testified. Under Barney’s questioning, the government’s firearms expert admitted that shell casings found at the scene and the sound witnesses heard could not have come from a double-barreled shotgun. By closing arguments, Barney had the ease of a seasoned defense attorney. He left his notes on the table and methodically laid out the inconsistencies of the government’s case for the jury. “The most important thing I learned was to trust my own instincts,” he says. “I relaxed a little bit by the end when I realized I could handle talking to the jury and I would know what to say.” One of the biggest differences in working on criminal matters, Barney says, is the lack of pretrial information. In civil trials “there is a tremendous amount of discovery and the trials themselves are much more scripted,” he notes. “In criminal trials witnesses say things you don’t expect and you get handed documents at the last minute.” Barney came into the Clark case with a bit more trial experience than some of his colleagues in the program. He had participated in one jury trial and two bench trials in patent disputes, but he had never picked a jury, led a trial, or had any criminal experience. Antigone Kriss, another Finnegan associate in the program, agrees that in civil cases the proceedings are much more predictable. But she says the personal connection to the clients draws her back. So far, she has handled three cases through the program. Her first trial was a misdemeanor assault case that ended in an acquittal after a bench trial. The second and third cases were for the same client, who was then accused of murder. His first trial, last May, ended with a hung jury, but after another trial, last month, he was acquitted of all charges. Kriss’ client spent two years in jail waiting for his case to be heard, she says, and the attorneys got to know him and his family very well. What was really touching, she says, is that he sent the attorneys notes during the trial, which she has kept to this day. “They were very sentimental,” she says. “Basically, he just said that no matter what happened in the case, he was so grateful for our help.” After his acquittal last month, Kriss says she helped her former client find a construction job and bought him new boots for work. When she called to see how the job was going, she says he was enjoying it so much “he just couldn’t shut up about it.” “To some extent we get personally involved with our corporate clients as well,” she says, “but not in the same way.” TRIALS AND RETRIALS And what of Antonio Clark’s case? While Barney waited for a decision last week, he was already back handling issues for his patent clients. On Thursday, after more than three days of deliberations, the jury returned its verdict � sort of. It deadlocked, ending with another hung jury. The government has already set another trial date for Clark next March. Barney says he hopes he will be right back at the defense table, this time with the confidence of a courtroom veteran. “I can’t get enough courtroom experience, especially in a patent firm.”
Bethany Broida can be contacted at [email protected].

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