Appealing Matters

White & Case expands its US pro bono criminal appeals practice

In 2012, White & Case expanded its work in one of the traditional pillars of pro bono practice—handling criminal appeals and other criminal filings for those who cannot afford a lawyer. With leadership from partners and Pro Bono Leaders Karen Asner, Ken Caruso, Dave Hille and Scott Hershman, lawyers in our New York office undertook a dozen such matters and advanced arguments related to prosecutorial misconduct, insufficiency of the evidence, legal and factual impossibility, improper tailoring of testimony, bad stops and searches, illegal sentences and more. In addition to our longstanding collaboration with The Legal Aid Society on such matters, we developed a new relationship handling appeals for the Center for Appellate Litigation.

The New York office also established a relationship with the Queens District Attorney’s Office Appeals Bureau. White & Case associates are designated as Special Assistant District Attorneys and, under partner supervision, draft and argue responses to criminal appeals on behalf of the People of the State of New York. In a time of tight budgets, our work frees up prosecutorial resources for other pressing matters.

A cutting-edge challenge to extended solitary confinement

We also partner with Reprieve, an anti-death penalty organization. This year we took on a cutting-edge matter in support of a growing movement to prohibit extended solitary confinement, which, according to a recent UN report, may inflict severe mental pain and suffering. Our client, a federal death-row inmate, has been kept alone in his cell in a federal prison for the better part of a decade. New York partner John Chung and associates Spencer Willig, Isaac Glassman and Andrej Micovic are helping our client challenge his confinement and the Special Administrative Measures, which severely restrict his ability to interact with others. They have helped him file an administrative claim with the Federal Bureau of Prisons, laying the foundation for a challenge to the federal government’s ability to impose indefinite terms of isolation.

HIV as a deadly weapon

In New York, partner Greg Starner and associates Peter Moran and Brooke Sharpe helped win a dismissal by New York’s highest court of a very serious criminal conviction predicated on the client’s HIV status. The client, arrested after an altercation with police during which he allegedly bit an officer, was charged with aggravated assault upon a police officer. This crime requires use of a “dangerous instrument,” which in this case was alleged to be the client’s HIV-positive saliva.

Before the Court of Appeals, White & Case helped Lambda Legal prepare strategy, craft lines of attack and outline oral arguments for a challenge to this conviction, arguing that the saliva of an HIV-infected defendant does not constitute a dangerous instrument or deadly weapon under New York law. The Court of Appeals dismissed the aggravated assault conviction based on HIV status and remitted the case for resentencing. As Greg Starner noted, the case had both criminal law and civil rights aspects: “This is an important decision, with the Court unanimously confirming that bodily fluids such as saliva cannot be considered a dangerous weapon under New York law. It also sends an important signal that an individual’s HIV status should not subject him or her to heightened criminal penalties.”

A rare Fourth Circuit oral argument

As a member of the Criminal Justice Act Appellate Panel for the United States Court of Appeals for the Fourth Circuit, our Washington, DC office was assigned the criminal appeal of an inmate convicted of armed robbery in the Middle District of North Carolina and sentenced to 30 years in federal prison. After scouring the record for possible appellate arguments, we appealed his conviction on two grounds: the improper admission of identification evidence, which tainted the jury’s consideration of the other evidence and therefore denied him his constitutionally guaranteed right to a fair trial; and the trial court’s failure to provide the jury with the required instructions. The appeal was fully briefed in February, and in June the Fourth Circuit, in a rare decision, granted our request for an oral argument. We argued the case before a panel of the Fourth Circuit in October and expect a decision in early 2013.

A blueprint for reducing jail violence

Lawyers in our Los Angeles office acted as counsel to the Los Angeles Citizens’ Commission on Jail Violence, a panel created by the LA County Board of Supervisors to investigate alleged brutality and management failures in the county jail system. Partner Fernando Aenlle-Rocha served as Deputy General Counsel to the Commission, and counsel Ron Gorsich and associates Rachel Feldman and Lauren Fujiu served as Counsel. Our lawyers joined nearly 50 other lawyers from ten firms who formed investigative teams to provide pro bono advice. The team interviewed numerous witnesses, presented testimony at public hearings before the Commission, toured the LA county jails and wrote a detailed report containing findings and recommendations aimed at improving the climate in the jails and reducing violence. The report was well received by the LA County Board of Supervisors, the media and those involved in the jail system. It serves as a blueprint to overhaul the nation’s largest jail system.

Holocaust reparations

Since 2008, lawyers in the Miami office have helped more than 20 Holocaust survivors obtain reparations from the German government for their work in the Nazi ghettos during World War II. Germany created the German Ghetto Work Payment Program (GGWPP) in 2007 to pay €2,000 to Holocaust survivors who worked in German-controlled ghettos. Germany previously had established programs to assist survivors of the Nazi concentration camps, but the GGWPP was the first program to compensate survivors of the ghettos. Approximately 60,000 survivors—thousands of whom live in the United States—are estimated to be eligible for the GGWPP payments. Soon after the program was created, the Miami office hosted a legal clinic to meet survivors and screen their eligibility. Lawyers then worked with eligible survivors to prepare and submit their applications. When Germany in 2011 approved an additional pension payment for survivors, White & Case assisted its clients in applying for this new benefit. Through perseverance and good legal work, White & Case has obtained approximately €35,000 in benefits for its clients, including benefits for clients who had previously been denied compensation.

U visas for crime victims

Through referrals from Community Legal Services in East Palo Alto, lawyers in our Silicon Valley office represent victims of crime or domestic violence in obtaining U non-immigrant status, also known as U visas. A U visa gives victims of certain crimes temporary legal status and work eligibility in the United States for up to four years. Most recently, associate Carmen Lo represented an undocumented immigrant who was the victim of an assault with a deadly weapon. The victim was walking across a parking lot when a vehicle ran into him and fled the scene. The victim required surgery on both legs, and needed six to twelve months of physical therapy before he could fully regain the use of his legs. The victim assisted the police investigation, though the perpetrator was never found. The client’s application for a U visa is currently pending.

In The Eye of the Beholder
 In the Eye of the Beholder

Amicus brief urges new framework
Under the supervision of New York partner Gregory Little, White & Case filed an amicus curiae brief on behalf of the Innocence Network, which urged the Supreme Court of the State of Washington to adopt a new suppression framework that evaluates all factors that may affect the credibility of any eyewitness identification evidence. The framework goes beyond suppressing identifications procured by improper police tactics to allow for other protections such as jury instructions and expert testimony.
Overturned wrongful convictions

We provided access to justice for 277 individual clients in 2012, up from 241 in 2011.


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