US Supreme Court
Advocating in the Highest Courts
Appellate and US Supreme Court
Three Pro Bono Clients, Three Wins before the US Supreme Court
It was March 20, 2017, and Partner Adam Unikowsky was in the lawyers lounge at the US Supreme Court, prepping for his upcoming argument, the first of three that term. Suddenly, a marshal entered the lounge and asked for Adam.
“Can I talk to you?” the marshal said. “Your client’s here.”
It was John Howell, a US Air Force veteran whose dispute over his ex-wife’s share of his military retirement pay had reached the highest court in the land. Adam made sure to get the required ticket for his client, who had driven to Washington, DC, so Howell could watch the proceedings.
Howell was just one of three pro bono clients Adam served in the 2016-2017 term, the others being Terry Honeycutt and Charles Kokesh. In all three cases, the results were the same: Adam prevailed on behalf of each client.
Howell was “happy to come” to hear Adam’s argument on his behalf. He was, naturally, thrilled with the result. On May 15, 2017, the Court issued its 8-0 ruling. The justices agreed with Adam that federal law pre-empted a state court’s order directing Howell to indemnify his former spouse for the reduction in her portion of his retirement pay resulting from his post-divorce decision to take disability pay.
“Honestly, it’s quite unusual for a divorce case to reach the Supreme Court,” Adam explained. “Most of divorce law is state law; it wouldn’t reach the Supreme Court. The only reason this one did is because it was about military divorce law. That’s why it was a federal issue.”
“I’m sure he never thought his divorce would reach the Supreme Court—it’s one in a million.”
The other cases were more high-profile, and Adam worked hard to show that Jenner & Block—with its experience and skill—was the wise choice to handle the cases.
In Kokesh v. Securities and Exchange Commission, Adam represented Charles Kokesh in a case that ultimately limited the SEC’s power to obtain “disgorgement” of illegally obtained profits. As a result of the Court’s 9-0 decision, the original $34 million judgment against Kokesh went down to, at most, $5 million. But the impact goes beyond Kokesh. The SEC’s ability to extract judgments and settlements in enforcement actions that allege long-running schemes is likely to be substantially constrained. Indeed, as Adam told reporters after the ruling on June 6, the decision “grants important protection to defendants facing enforcement actions by the SEC and other agencies.”
Adam emailed the decision immediately to Kokesh.
“He was very happy with the result.”
In Honeycutt v. US, Adam represented Terry Honeycutt, who was convicted of participating in a drug conspiracy with his brother, who owned the hardware store where the illegal sales took place and where Honeycutt was a salaried employee. The appeal challenged a Sixth Circuit order that he forfeit almost $70,000 to account for proceeds—that he never received—from the sales. Adam successfully argued that federal criminal asset forfeiture statutes apply only to property a defendant actually acquires as the result of the crime, or substitute property under narrowly defined circumstances.
All three clients were grateful for the firm’s pro bono support of their cases. It wouldn’t have been “in the cards” for any of the clients to afford representation at the Court level.
“By taking these cases pro bono, we ensured that each client was represented by experienced Supreme Court counsel. And it allowed Jenner & Block the great honor of litigating in the Supreme Court,” Adam said.
appellate and us supreme court
Firm Helps Client Expose Drug Raid Surveillance Video that the DEA Tried to Suppress
In October 2017, the video that firm client Mattathias Schwartz sought as an investigative journalist—showing what happened in 2012 when four Honduran civilians were killed during a drug operation carried out by the US Drug Enforcement Administration (DEA)—was finally published for the first time. Featured in a joint New York Times–ProPublica piece written by Schwartz and Natalie Reneau, the surveillance footage shows one-sided gunfire originating from the DEA’s vessel following its collision with a boat of civilians during a drug raid. The footage challenged the DEA’s version of events that the two boats exchanged gunfire.
In August 2012, Schwartz filed a Freedom of Information Act request with the DEA requesting the surveillance video. When the request was denied, Schwartz filed suit.
Associate Carl Wedoff, who led the firm team representing Schwartz, spoke of the case’s challenges: “The DEA claimed that the video was exempt from disclosure because it would reveal unknown law enforcement techniques to the public. We had to overcome this argument without seeing the video or understanding the specific techniques DEA sought to protect. Nevertheless, we successfully argued that all purported techniques were disclosed in other public materials—including interdiction videos previously made public by DEA.”
In January 2016, after two full rounds of summary judgment briefing and argument, numerous additional submissions and in-camera review of the video, Chief Judge Carol Bagley Amon of the Eastern District of New York issued a 46-page opinion releasing the video. A unanimous Second Circuit panel affirmed the decision. Carl is hopeful that the case will have a noticeable impact, adding, “We believe the decision will limit law enforcement’s ability to withhold embarrassing or inculpatory records from the public in the future.”
Schwartz’ goal from the beginning was to publish an article describing and analyzing the surveillance video. The New York Times-ProPublica piece following the video’s release not only was front-page news, but the video’s publication was also covered by The Independent (UK) and other media outlets. Schwartz is grateful to the firm team. “Thanks to Jenner & Block,” he said, “Carl and I were able to unearth a video of tremendous significance, one that shows the killing of four unarmed Honduran civilians by DEA agents and exposes years of lies that the DEA told Congress. The stakes in this case were nothing less than whether the government should be able to rewrite history.”
Appellate and US Supreme Court
This Supreme Court term, Jenner & Block partners are arguing three pro bono cases before the high court, concerning matters ranging from gerrymandering to tolling provisions, tax statutes to contracts clauses.
On October 4, 2017, Partner Jessica Ring Amunson argued against the United States in Class v. United States. Jessica represented Rodney Class, a retired veteran from North Carolina, in arguing that his guilty plea should not bar him from appealing his conviction on the grounds that the statute under which he was convicted was unconstitutional. In addition to Jessica, others on the team representing Class included Associates Joshua Parker, Corinne Smith and Leonard Powell. Jessica also briefed and served as co-counsel at argument for plaintiffs-appellees in the high-profile gerrymandering case, Gill v. Whitford. The firm, alongside The Campaign Legal Center, argued that partisan gerrymandering claims are justiciable and that the lower court correctly held that Wisconsin’s Assembly districts were unconstitutional partisan gerrymanders.
On November 1, 2017, Partner Adam Unikowsky argued against the District of Columbia in Artis v. District of Columbia, a case that concerns the statute of limitations for litigants who file state-law claims in federal courts only to have those courts decline to exercise jurisdiction over those claims. Adam, whom Law360 recently described as an “appellate wunderkind,” represented petitioner Stephanie Artis, a former DC health inspector. On January 22, 2018, the US Supreme Court ruled in favor of Adam in a 5-4 decision. This was the sixth consecutive Supreme Court victory for Adam after three wins last term and two the term prior.
On December 6, 2017, Partner Matthew Hellman argued against the United States in the high-profile IRS tax obstruction statute case Marinello v. United States. He challenged a Second Circuit decision that upheld Marinello’s felony conviction for obstructing an IRS investigation. The government read the statute to criminalize any “corrupt” act that ultimately hinders the administration of the tax code. The firm argued that the obstruction statute should be interpreted like other obstruction statutes—to apply when the defendant intends to hinder an IRS proceeding that he or she knows about. In addition to Matthew, others on the team include Partners Geoffrey Davis and David Bitkower and Associates Corinne Smith and Michael Stewart. The firm was assisted by the Jenner & Block University of Chicago Law School Supreme Court and Appellate Clinic.
Appellate and US Supreme Court
Two Days, Two CaseS
Partner Jessica Ring Amunson made two appearances before the US Supreme Court this term.
On October 3, 2017, Jessica served as co-counsel at argument for plaintiffs-appellees in the high-profile gerrymandering case Gill v. Whitford. Former Jenner & Block partner Paul Smith, who now serves as vice president of Litigation and Strategy at the Campaign Legal Center, delivered the argument in this nationally significant case. Jessica helped to prepare all of the briefs in the case, arguing that partisan gerrymandering claims are justiciable and that there is a manageable test for adjudicating such claims under both the First and the Fourteenth Amendment. Wisconsin’s legislative districts failed that test and were held by the lower court to be unconstitutional partisan gerrymanders. The effects of partisan gerrymandering, in which politicians manipulate the borders of legislative districts to favor one party over the other, are widely felt. Legal analyst Jeffrey Toobin wrote for The New Yorker that “by essentially giving most seats to one party or the other, thus eliminating competitive seats, the state legislators have exacerbated the polarization and the paralysis that afflict our democracy.” The case received extensive national coverage, with the New York Times writing that “the outcome of the Court’s decision in Gill v. Whitford is likely to shape American politics for years and perhaps decades to come.” A ruling on the case is expected by the end of June 2018.
The following day, Jessica made her second appearance and her first argument before the Court when she argued against the United States in Class v. United States. Jessica represented Rodney Class, a retired veteran from North Carolina, in arguing that a guilty plea does not inherently waive a defendant’s right to challenge the constitutionality of his statute of conviction. Class was arrested in 2013 and subsequently pleaded guilty. However, when he later attempted to appeal his conviction to the US Court of Appeals for the District of Columbia Circuit on the grounds that the statute under which he had been convicted violated his Second Amendment and due process rights, the court held he was unable to raise those claims because of his plea. Jessica asserted that his guilty plea did not bar him from appealing the conviction. She clarified that Class was not challenging his factual guilt, but rather whether the statute itself is lawful. In addition to Jessica, others on the team representing Class included Associates Joshua Parker, Corinne Smith and Leonard Powell.
Appellate and US Supreme Court
extreme Prejudice During Trial
We are appealing a client’s conviction and death sentence on the grounds that his trial was filled with extreme prejudice and error including, among other violations, the client being subjected to a 50,000-volt electric shock during trial. Partner David DeBruin leads an extensive firm team on behalf of James Calvert, a man with a history of depression and mental illness who was convicted of shooting his ex-wife in 2012. Calvert was sentenced to death in Texas in 2015. In this direct appeal of the conviction and sentence, David argues that the errors in Calvert’s trial deprived him of a “fair determination of whether he was guilty of capital murder and should be sentenced to death.” In the most extreme incident, Calvert was shocked simply because he failed to stand when addressing the court. “The trial court had lesser alternatives, and allowing bailiffs to use a 50,000-volt shock device in these circumstances shocks the conscience and contributed to a violation of Calvert’s right to a fair trial,” David writes. But that incident was not the only significant issue in Calvert’s trial, which was “filled with improper and highly prejudicial testimony.” Calvert is asking the Court of Criminal Appeals of the State of Texas to reverse the death sentence and remand for a new trial.
A large team of firm lawyers assisted Dave with the brief. They include the following: Partners Anthony Basich, Ishan Bhabha, Gregory Boyle, David Bradford, Brent Caslin, Carissa Coze, Amy Gallegos, Brent Kidwell, Brienne Letourneau, John Mathias, Jr., Michael McNamara, Jolene Negre, Jason Osborn, Gregory Petkoff, Megan Poetzel, Peter Pope, Kate Price, Cynthia Robertson, Gabrielle Sigel, and Marc Van Allen and Associates Brian Adesman, Jacob Alderdice, Rachael Cresswell, Michaela Croft, Jeremy Ershow, Nicolas Keller, Tracey Lattimer, Keisha Stanford, Jessica Veitch and Joshua Violanti.
Appellate and US Supreme Court
CHALLENGING MONEY BAIL SCHEMES
The firm filed two amicus briefs on behalf of the American Bar Association in two separate cases that challenge the constitutionality of various states’ practices of detaining defendants without determining an individual’s ability to pay for money bail.
The first amicus brief, filed in August 2017 in the Fifth Circuit Court of Appeals, concerned Harris County, Texas’ money-bail system.
In O’Donnell v. Harris County and McGruder et al. v. Harris County, the plaintiffs were arrested under misdemeanor charges, and bail was set at prescheduled amounts, which they could not pay. A federal district court ruled that the predetermined bail schedule was treated as a “nearly irrebuttable presumption in favor of applying secured money bail at the prescheduled amount.” The court issued a preliminary injunction ordering the court to release misdemeanor defendants on personal bond—not secured by cash in advance—within 24 hours of being arrested. Harris County appealed to the US Court of Appeals for the Fifth Circuit.
The brief, in support of the plaintiffs, argues that money-bail systems that fail to consider a defendant’s ability to pay violate the ABA’s criminal justice standards and that jailing otherwise release-eligible defendants because they cannot buy their freedom is unconstitutional. It explains that, after studying the issue over many decades, the ABA has concluded that money bail harms criminal defendants, does not serve the fair and proper administration of justice, and does not advance public safety or the interest of justice. The brief also explains that a consensus has developed that money-bail schemes are unfair and do not work. It urges the Fifth Circuit to affirm the decision of the federal district court.
The team in that case includes Partner Lindsay Harrison.
In November 2017, the firm filed another amicus brief on behalf of the ABA in the Eleventh Circuit Court of Appeals in a suit challenging the constitutionality of the City of Calhoun, Georgia’s practice of detaining defendants, prior to trial pursuant to a preset money-bail schedule, without determining an individual defendant’s ability to pay.
In Walker v. City of Calhoun, GA, the plaintiff, a mentally disabled individual, was arrested for a misdemeanor and detained for 11 days due to his inability to afford a standard $160 cash bond to secure his release. A federal district court issued a preliminary injunction ordering the municipal defendant to “implement post-arrest procedures that comply with the Constitution.” While further proceedings were pending, the City of Calhoun issued a new Standing Bail Order governing pre-trial detention of arrestees. The plaintiff again challenged the constitutionality of the new Standing Bail Order, and the federal district court found that the Standing Bail Order “still violates the Constitution insofar as it permits individuals who have sufficient resources to post a bond (or to have one posted for them) to be released immediately, while individuals who do not have those resources must wait 48 hours for a hearing.” The federal district court issued a second preliminary injunction prohibiting the City of Calhoun from detaining indigent misdemeanor arrestees who are otherwise eligible for release but are unable to pay money bail because of their poverty and directing the city to provide indigent arrestees with an individualized hearing, assessing their inability to pay within 24 hours of their arrest. The City of Calhoun appealed to the US Court of Appeals for the Eleventh Circuit.
The brief, in support of the plaintiff-appellee, echoes the arguments made in the Fifth Circuit and urges the Eleventh Circuit to affirm the decision of the district court.
Appellate and US Supreme Court
ANOTHER CHANCE AT AIRING GRIEVANCES
Our client, Mr. Daher, was incarcerated at Miami Correctional Facility in Bunker Hill, Indiana. In 2011, correctional officers placed him in segregation, seized his legal papers and denied him access to soap, shower, toothpaste, a toothbrush, clean clothes and bedding for approximately eight days. While seizing his legal papers, correctional officers told Daher to “quit filing grievances, and causing trouble in court.” He was kept in segregation for 32 days, despite violating no rule and receiving no disciplinary sanctions. He was then erroneously reclassified as a level 4 offender and transferred to Wabash Valley Correctional Facility.
Daher submitted classification appeals and grievances on these issues, to no avail. In 2013, he filed a civil law suit as a pro se plaintiff in the United States District Court for the Southern District of Indiana, alleging the defendants violated his First, Eighth, and Fourteenth Amendment rights. The case was transferred to the Northern District of Indiana. During the proceeding, the defendants argued that Daher failed to exhaust his administrative remedies because he did not file any grievances on the issue before filing the lawsuit. The district court referred the case to a magistrate judge to determine whether Daher adequately exhausted his administrative remedies.
Defendants alleged that they had no record of any of the grievances Daher filed and that Daher had fabricated his “Return of Grievance” form, using a return form from a different issue. Daher alleged that the jail had inadequate records and that jail employees routinely would mark return of grievance forms in an identical fashion. The magistrate judge determined that a Pavey hearing was necessary to determine whether Daher exhausted his administrative remedies.
During the hearing, Daher had the opportunity to cross-examine the witnesses and attempted to enter some documents as exhibits, but the magistrate judge found the exhibits were not relevant. The defendants put on their case for approximately two hours. When it came time for Daher to testify, the magistrate judge stated that he would only allow Daher to do so for 10 minutes. Daher elected not to testify.
The magistrate judge then recommended that the district court dismiss Daher’s case for failure to exhaust administrative remedies. The district court adopted the recommendation.
The firm represented Daher is his appeal to the Seventh Circuit. In December 2017, the firm argued that the magistrate judge denied Daher a fair Pavey hearing, and, in doing so, violated his due process rights. We argued that Daher was entitled to discovery prior to the adjudication of his claims and that the magistrate judge promised a two-step approach, but stopped after the first step. We also argued that Daher did not waive his right to appeal.
In January 2018, a Seventh Circuit panel determined that the magistrate judge unreasonably applied procedural rules to the process governing the Pavey hearing. The panel directed the district court to allow Daher to take discovery relating to his exhaustion claims and directed the district court to hold another Pavey hearing.