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By the time Wen Ho Lee, a Los Alamos nuclear physicist, found Mark Holscher, a white-collar criminal defense specialist of Los Angeles-based O’Melveny & Myers, Lee was already in big trouble. Newspapers were running stories suggesting that he had passed nuclear secrets to the People’s Republic of China. Television reporters were encamped on his front lawn in New Mexico. The FBI, which had been interrogating Lee for months, was threatening the suspect with allusions to the Rosenbergs — trying to get Lee to admit to espionage. “There was a real sense of hysteria about it,” says Holscher, 37, a former assistant U.S. attorney in Los Angeles. Wen Ho Lee had precious few friends in the ensuing months at the end of 1999, during which he was publicly labeled a spy, indicted for unauthorized possession of nuclear secrets, and committed to solitary confinement in a New Mexico prison. But he did have Holscher and O’Melveny — which eventually made an executive committee decision to represent Lee pro bono. “Although the press was painting him in a bad light, Mark was convinced he was innocent,” says O’Melveny managing partner Douglas Kranwinkle. “We thought this was an important case. Important legal principles were at stake.” On June 29 the O’Melveny partner filed an inflammatory selective prosecution memo, contending that Lee was targeted for prosecution because he is Chinese. (Lee is a Taiwanese native who became a U.S. citizen in the 1960s.) Moreover, Holscher’s motion contends, Lee was indicted for computer file maneuvering that others — including former CIA director John Deutch — engaged in without ever being criminally indicted. With Lee’s case headed for a November trial date, public opinion, Holscher says, has shifted, especially in the wake of revelations about additional classified file mishandling at Los Alamos. “Are we proud of Mark Holscher and the work he’s done for Wen Ho Lee?” asks O’Melveny litigation head Mark Wood. “You bet we are.” According to published reports, Lee’s defense attorneys on Monday asked U.S. District Judge James Parker in Albuquerque to dismiss all but 10 of the 59 counts against Lee on the grounds that they deal with “intangible information” not covered by federal law. The Lee case began in the mid-1990s, when Department of Energy officials became convinced that the Chinese government had obtained design information for a nuclear warhead called W-88. They believed the information could only have come from Los Alamos, and the Energy Department launched an investigation, which was later joined by the FBI. Wen Ho Lee, who had been to China twice in the 1980s, soon came under scrutiny. Lee underwent a series of interrogations — and two polygraph tests — without hiring a lawyer. “My father is so naive and simple,” says Lee’s daughter, Alberta, a technical writer in San Francisco. “He said, ‘Why do I need a lawyer? I didn’t do anything.’ ” Only when news stories identifying him as a spy began to appear did Lee agree to let Alberta help find him a lawyer. “ The FBI,” she says, “was trying to get my father to confess to something he didn’t do.” The FBI had amassed some damaging evidence. Investigators had discovered that Lee had transferred a series of computer files out of a secure file system at Los Alamos to a less restricted system. He had also downloaded the files onto disks. Government witnesses have described the contents of the downloaded files as “chilling,” asserting that foreign scientists, with help from someone knowledgeable about the Los Alamos computer codes, could use the files to design nuclear weapons. Lee had, moreover, admitted to the FBI that he had been approached by Chinese agents during his 1986 trip to China, and he had allegedly failed an FBI-administered polygraph test in which he was asked if he’d passed secrets to the Chinese. In a panic, Alberta Lee turned to a UCLA friend who was in law school. With her friend’s help, she eventually made her way to Holscher, whose prosecutorial career included the Heidi Fleiss case and the investigation of Arizona governor Fife Symington. Holscher met with Wen Ho Lee and was stirred by his story. “I had a sense that important issues were at stake here,” Holscher says. “Someone who had been questioned without a lawyer was being asked to sign a confession to a crime that was a death penalty offense — he needed a lawyer.” Holscher consulted with Kranwinkle and litigation department chairman Mark Wood. “I was 100 percent behind it,” says Wood. “We take on unpopular causes. That’s what it means to be a lawyer.” Kranwinkle checked with the University of California, an O’Melveny government contracting client, to make sure that it didn’t object to the firm representing Lee. It didn’t, so he gave Holscher the go-ahead. Holscher and partner Daniel Bookin — aided by the Albuquerque lawyers Holscher brought into the case, Nancy Hollander and John Cline of Freedman Boyd Daniels Hollander Goldberg & Cline — have managed to change the spin on the Lee evidence. (Cline has some relevant experience — the former Williams & Connolly partner worked on the defense of Oliver North.) The indictment doesn’t even allege that Lee passed secrets to the Chinese; indeed, the U.S. government has conceded since Lee was indicted that the Chinese don’t even have W-88. And the files that Lee downloaded were not actually classified until after Lee downloaded them. Lee’s lawyers assert that the scientist is a scapegoat. “After what I’ve seen happen, I’m totally ashamed of my country,” says Lee’s daughter, Alberta. “But I get the feeling that everyone involved [at O'Melveny] is really sympathetic. When I call there, even the secretaries are crying on the phone, saying, ‘We’re so sorry for your family.’ “

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