Defense attorney Ian Loveseth is due more than the satisfaction of winning two spats that have embarrassed U.S. Attorney Kevin Ryan — he’s finally going to get some money out of the government, too.

Earlier this week, Ryan’s office dropped a gun case against Loveseth client Lloyd Jamison after a prosecutor listened to taped conversations between the two — and after the prosecutors sparked an uproar by arguing in court that phone conversations between inmates and their attorneys aren’t subject to privilege. Satisfying as that must have been, it’s his other recent dustup with Ryan that’ll produce unusual monetary rewards.

In an earlier eruption, Loveseth locked horns with Ryan’s office when a DEA agent gave conflicting testimony in a drug case, the U.S. Attorney’s Office delayed in dismissing the case, and Judge Charles Breyer ruled that Loveseth could depose the U.S. attorney and five deputies as part of his attempt to recoup his client’s attorneys’ fees.

This raised some eyebrows since the government taking seriously the request for attorney’s fees is such a rare occurrence that several Justice Department veterans said they’d never heard of before.

The depositions got delayed as Loveseth and Patrick McLaughlin, an assistant U.S. Attorney from L.A. who’s been assigned to handle the case, discussed a settlement. On Wednesday, the two attorneys came back to Breyer’s courtroom to ask his advice on a key matter: “The appropriate rate a lawyer is entitled to receive in compensation for services rendered,” as Breyer put it at the hearing. The lawyers met with the judge in chambers; Breyer agreed to review filings by both parties and report back in December, at which time a settlement could be finalized.

— Justin Scheck

The Milberg Weiss case is making people jittery — again. Fortune Magazine wrote another big story on the saga (largely retread) and Fortune and the Daily Journal both wrote about the interesting presence of former Milberg expert witness John Torkelsen in downtown L.A. Long viewed by prosecutors as a key to the case, the expert, who was sentenced earlier this year to federal prison time in New Jersey, was moved to an L.A. facility weeks ago, ostensibly for a handwriting examplar. But his continued presence in SoCal has many lawyers in the case wondering if he’s flipped — or if prosecutors are just massaging him to coax out some bit of information.

In the meantime, Milberg’s lawyers are working hard to assert attorney-client privilege over any documents they can possibly fit under that umbrella, while prosecutors need to figure out if they can use the testimony of Steven Cooperman, the man who began the entire probe — or if his sketchy past makes him too tainted.

Lawyers involved with the case say the tension is unlikely to dissipate before the next big break — prosecutors risk judicial upset if they don’t file additional indictments by the end of the month.

— Justin Scheck

Could there be a greater temperamental — and ideological — canyon than the one between Ninth Circuit Judges Stephen Reinhardt and Jay Bybee? The former was being called a liberal activist judge before Bybee was done with law school — and, one would hope, years before Bybee even considered signing the now-infamous 2002 Bush administration torture memo.

Combine those differences with some methamphetamine, heavy metal and murder, and you’ve got the makings of a good case (court .pdf).

In March of 2005, Reinhardt and Bybee found themselves on a three-judge panel — together with Senior Judge Procter Hug Jr. — that heard the case of Roger Smith. He claimed that his guilty plea in the murder of Emmet Konzelman was no good since his supposed accomplice Jacob Edmonds — who pleaded guilty to a lesser charge and testified against Smith — later recanted his testimony.

In his majority opinion, Reinhardt wrote that even though Smith had not exhausted his state claims, a rarely used exception should allow his case to move forward in federal court.

“There is substantial evidence in the record to suggest that Edmonds murdered Mr. Konzelman and that he committed the killing outside of Smith’s presence and without any advance knowledge on Smith’s part that he would engage in any violent conduct or that he possessed a dangerous or deadly weapon,” Reinhardt wrote.

And seven years after the murder, Edmonds — in a notarized letter, no less — supported that statement by saying he was the killer who attacked Konzelman and his wife with a rope and crowbar.

Still, Bybee was unswayed — extremely unswayed — as evidenced by his dissent, which is one of the more entertaining pieces of writing to come out of the Ninth Circuit this year.

“Roger Smith and Jacob Edmonds needed money. Bad. For an Anthrax concert,” he wrote. So the meth-addled pair “burglarized the Konzelmans’ garage to obtain tools.” Bybee then goes into a detailed recitation of the facts of the murder, and his argument of why the case shouldn’t move forward. “

Edmonds now claims that Smith is innocent. The problem is that Smith was convicted of felony murder” [italics in original].

In short — and that might be misleading, since the dissent is 43 pages long — Bybee wrote that he’s got a bone or two to pick with Reinhardt’s reasoning.

“I disagree with nearly every word the majority has written, including ‘and’ and ‘the.’ My profound disagreement is not limited to the facts, but runs throughout the majority opinion.”

He goes on to say that “the majority infers elaborate conclusions from the tiniest scraps of evidence, building narrow platforms that it leaps between in a complex game of judicial hopscotch. It is difficult enough to trace their path; I cannot join them in it.”

In a footnote, though, Bybee does agree with the majority on one point — about the given name of “Hooter” Bouse, who allegedly drove with Edmonds and Smith to the Konzelman home.

“There is some ambiguity in the record as to whether Mr. Bouse’s first name is “Arlen” or “Marlin,” he wrote. “The district and magistrate judges used the former, and the majority and the state court sentencing transcript use the latter. On this question, at least, I join the majority.”

— Justin Scheck

It’s not saying much that San Francisco federal prosecutors’ arguments in a big gang case got a better reception before a three-judge Ninth Circuit panel Thursday than they did this summer from U.S. District Judge William Alsup.

At a withering July hearing, Alsup pulled up about two invectives short of a full-out conniption as he harangued prosecutors for violating his ruling to turn over discovery material under a protective order — and suggesting he sanction them by precluding the death penalty against some of the gaggle of defendants. He called that tactic “slippery,” and said the prosecutors “thumb their nose” at the court, were “hiding the ball,” making a “bogus argument,” engaging in “gamesmanship,” being “frivolous,” and “inviting the court to make an error.” He later ordered that any witnesses whose names weren’t turned over in advance — something the government said would jeopardize snitches’ lives — would be excluded from the case. The stakes in the case have risen since then: Now two defendants, Emil Fort and Edgar Diaz, face execution.

The appellate panel Monday was much gentler: Ninth Circuit Judges William Fletcher, Susan Graber and Richard Tallman focused their attention on a relatively narrow piece of the evidentiary rules, and seemed disinclined to completely back Alsup’s protective order without reservation.

That was good news for the U.S. attorney’s office, which had six or so lawyers in the audience, presumably for moral support. “We believe the protective order is a clear abuse of discretion,” Erika Frick, the assistant U.S. attorney arguing the case, told the panel. She didn’t get a completely smooth reception, though.

“I was quite struck by Judge Alsup saying ‘I’m stuck between a rock and a hard spot,’” said Fletcher, alluding to the rough situation the trial judge faces if the government gets its way: Many witness names would not be disclosed until just before a person was set to take the stand, which would force the judge to grant mid-trial continuances for the defense to investigate the witnesses. And Tallman seemed troubled that the government did little to help Alsup draft a protective order to solve the witness problem. “Why didn’t the government participate in the drafting of the protective order?” he asked Frick. “It seems that the court was all but begging for the government’s help.”

Tallman and Graber, though, seemed to have bigger issues with the defendants’ main arguments, which were presented by Jones Day partner Martha Boersch (solo Michael Satris offered a separate argument asking the panel to preclude execution). They were concerned about ambiguity in whether the evidence rules apply to material produced only by federal agents or also to state and local agents — in this case police — who were working on the federal case. Tallman also mentioned that the government had submitted large amounts of evidence in camera to persuade the panel, something that seemed to bother the defense.

“We’ve never seen it,” Boersch said. “We would dispute it if we could.”

In the end, the judges seemed inclined to send the matter back to Alsup, but with guidance that would likely support the government’s argument that evidence rules allow it to keep the heretofore undisclosed state investigators’ reports private until just before trial.

That, Frick argued, is a necessity for the prosecutors. “We’ve given them as much discovery as we possibly can,” she said. Fletcher corrected her: “You’ve given them as much discovery as you want.”

— Justin Scheck

While a sensational sex-trafficking case seems to have lost some of its salacious appeal, the attorney for a defendant in the case is trying to put some sizzle back in — by suggesting the cops were also customers at an alleged brothel connected to the case.

For San Francisco federal prosecutors, the press release last summer announcing 29 arrests seems to have been the high point for Operation Gilded Cage. Since then, what started out as a massive alien smuggling/sex trafficking prosecution has been reduced — through a series of dismissals and guilty pleas to lesser charges — to a prostitution ring case garnished with some alien harboring charges.

If Steven Gruel has his way, the lofty language of that July 1, 2005, press release (the prosecution “is a testament to the FBI’s commitment in investigating sophisticated human trafficking cases. These alleged illicit activities erode our social fabric and feed the coffers of many criminal enterprises,” FBI Special Agent Arthur Balizan is quoted as saying) will come back to haunt the government.

Gruel represents Anthony Lau, a defendant in the case, and he’s attached the press statement as an exhibit to his latest pleading, which calls into question a government search warrant with a verve rarely seen in court papers.

Gruel calls into question the government’s evidence to justify the search, and says its investigative work was limited to figuring out where Lau lived. “That’s it!” Gruel wrote.

But the most interesting point he makes in the filing comes later on. As support for his request for a hearing to determine whether investigators acted improperly in getting their warrant, Gruel writes that “Law enforcement were ‘customers’ at the Golden Flower,” Lau’s alleged brothel.

“According to the prosecution’s witness reports, individuals employed in law enforcement were ‘customers’ at the Golden Flower. The Lau defense is investigating these government reports to determine what impact this shocking information has on [FBI] Agent Rhea’s representations, and/or omissions, from his master affidavit,” Gruel wrote. But that’s all he says on the point. Reached by phone Tuesday, Gruel said he couldn’t make the discovery public, but is continuing to look into the matter.

— Justin Scheck

Alan Schulman’s departure from his current law firm, Bernstein Litowitz Berger & Grossmann, promises to be somewhat less eventful than his last exit from a major plaintiff shop. The San Diego litigator is retiring at the end of this year, planning to spend more time teaching at the University of San Diego School of Law, and much less time stressing over big-money securities cases. “I’ve been doing this for 33 years, so it’s a big deal for me,” Schulman said Wednesday. “I’m just burned out, and ready to do something new.”

Schulman said he was starting to feel the same way in 1999, when a bitter falling-out with star plaintiff lawyer William Lerach led to his departure from the firm then known as Milberg, Weiss, Hynes, Bershad & Lerach. “I was pretty much burned out by the time I left Milberg, and it was sort of exciting to build something from scratch,” Schulman said Wednesday. That he’s done: Bernstein’s West Coast office has grown to 14 lawyers —  soon to be 12, upon the departures of Schulman and another retiring partner, Robert Gans — as the firm has become a major player in the class action bar.

Of course, the landscape has changed over the last seven years: Milberg broke apart, with Lerach turning the firm’s West Coast operation into Lerach Coughlin Stoia Geller Rudman & Robbins — currently the pre-eminent plaintiff firm — and Milberg Weiss began a slow decline that intensified when the firm and two of its name partners were indicted earlier this year for allegedly paying illegal kickbacks to clients in class actions. And in that time, Bernstein Litowitz has become perhaps the pre-eminent competitor with Lerach, winning a handful of massive settlements for institutional investors.

In 2000, Schulman dished to Fortune magazine on his differences with Lerach. Indeed, the story said Schulman, then Milberg’s No. 2 West Coast partner, told firm leaders to choose between him and Lerach. Schulman was the one who left. “I did not want to be in a law partnership with him anymore,” he told Fortune, calling Lerach “vindictive” and “dangerous.” Among other problems he had with the firm, the story said, Schulman was upset with the relationship with an expert witness, John Torkelsen.

It was later reported by the Wall Street Journal that Schulman has been cooperating with the probe of Milberg Weiss, and in recent months, L.A. federal prosecutors have been zeroing in on Torkelsen — who’s currently in federal prison on unrelated charges having to do with an investment fund. They’ve secured the cooperation of Torkelsen’s ex-wife, and are now asking firms with which Milberg co-counseled to turn over Torkelsen-related documents that Milberg’s own lawyers say are privileged.

Schulman and John “Sean” Coffey, who over the last few years has been Bernstein Litowitz’s highest-profile partner, said the impending retirement is unrelated to the Milberg probe. “When Alan agreed to open up our West Coast office on Jan. 21, 2000, he anticipated, and we expected, he’d be there five years,” Coffey said. “And we were lucky enough to have him for seven.”

– Justin Scheck

For those who keep track of drug laws, it turns out to be a bad idea to manufacture pot snacks, even for sale at medical marijuana co-ops. Oh, and also, you shouldn’t be giving bong hits to your toddler.

That’s the message from a couple of recent federal rulings. On Friday, the Ninth Circuit Court of Appeals upheld the conviction of Jessica Durham, a Montana woman who had her 18-month-old daughter take bong hits, allegedly telling a police investigator “that smoking improved Michala’s appetite and left Michala lethargic and mellow — a manner she found consistent with her own experience smoking marijuana.” The circuit did overturn Durham’s five-year sentence, saying the statute governing toddler bong hits had a maximum of two years.

Kenneth Affolter, who pleaded guilty Tuesday to federal charges of conspiring to manufacture and distribute pot candy and plants, struck a deal to serve almost six years in prison. Affolter was responsible for the well-publicized operation that made Pot Tarts, Munchy Way and Trippy Peanut Butter — mimicking, as a press release from the San Francisco U.S. attorney’s office points out, brand-name snack foods.

Of course, the two cases have substantial differences. Affolter’s was a larger operation while Durham, out of frugality, a dwindling stash or some sort of age supremacy rule, had her daughter smoke resin scraped from the inside of the bong, rather than fresh pot. That was the main ground on which her lawyer challenged the conviction. Alas, the friend who reported Durham to authorities — and who photographed Michala — smoked some resin too. And she knew exactly what it was. “Based on her extensive experience as a marijuana smoker for over 20 years, she recognized the substance which Ms. Durham scraped from the inside of the water pipe as marijuana residue — that is, the burnt residue left on or in a pipe after smoking marijuana,” the opinion said.

In Affolter’s case, there was no allegation that what he was putting into the candies was anything other than top-rate. And while it’s not clear whether that would be considered better or worse than Durham’s transgression, federal agents — judging by their press statements Tuesday — took Affolter’s crime (and dental hygiene) very, very seriously.

“While real candy may give you cavities, these individuals know that marijuana candy can get you jail time,” stated DEA Special Agent in Charge Javier F. Pena.

— Justin Scheck

Pop quiz, con law hotshots: What were the three most important constitutional law decisions of the U.S. Supreme Court in the last hundred years?

The Federal Bar Association posed that question Thursday to three eminent scholars — Ninth Circuit Judge John Noonan, Boalt Hall professor Jesse Choper and criminal defense stalwart Ephraim Margolin — sparking a lively discussion before an audience of about 50 at the Ninth Circuit U.S. Court of Appeals. There was one ground rule set down by the moderator, Hastings professor Rory Little: Brown v. Board of Education was off limits, because it’s too obvious a choice.

Noonan answered the challenge directly, quickly identifying three cases in which he said the court was “vindicating principle by protecting persons.”

In 1910’s Weems v. United States, the court struck down as cruel and unusual a sentence of 15 years of “cadena” — which meant “hard and painful labor” with the wrists chained to the ankle — for a larcenous Coast Guard officer in the Philippines. In 1943’s West Virginia Board of Education v. Barnette, the court ruled that public schools could not require students to salute the flag. “In the memorable words of Justice Jackson,” Noonan said, ” ‘If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein.’ ” (Keep this in mind if Noonan gets assigned to Michael Newdow’s latest pledge of allegiance appeal.)

Noonan’s third choice was surprising in that it’s only three months old: Hamdan v. Rumsfeld, in which the court reined in President Bush’s authority to try military detainees. “Even in exercising his war powers, the president was not above legislative restraint,” Noonan said.

Choper took a more lawyerly approach to the matter, beginning by asking “What is ‘important’?” and then ticking off numerous cases that he considered very important, but that didn’t quite make the cut. (Those included the “three presidents cases” — Nixon, Clinton and Bush – Furman v. Georgia, invalidating numerous death sentences, the Apprendi/Blakely/Booker trilogy on sentencing; Roe v. Wade, which had enormous social but relatively little doctrinal impact; Washington v. Davis, a 1976 ruling that rejected the disproportionate impact test for proving discrimination; and San Antonio School District v. Rodriguez, a 1973 ruling that ended the expansion of suspect classes entitled to heightened judicial scrutiny.

For the three really most important cases, Choper began with 1908’s Twining v. State of New Jersey, which first considered applying the Bill of Rights to the states, plus several subsequent cases that explicitly applied them. “That series of decisions counts for at least — and I think I’m low — 75 percent of all the constitutional decisions in the United States,” Choper said. He also liked League of United Latin Citizens v. Perry, the Texas redistricting case from earlier this year, and the 1976 campaign finance case Buckley v. Valeo – two monumentally important issues involving the political process where the court is still grasping for satisfying answers.

In keeping with his role as a criminal defense attorney, Margolin began by challenging authority: He would include Brown v. Board of Education, regardless of the rule set down by Little. “We simply cannot be the same people after Brown v. Board of Education, and that is why it is No. 1,” Margolin said.

Margolin considered but rejected Gideon v. Wainright, the 1963 case that established the right to a court-appointed attorney in criminal cases. “The concept is beautiful. But you also have the reality where we do not apply that concept very much,” Margolin said, referring to civil cases and states that still pay very little for appointed counsel. Instead, Margolin went for Washington v. Texas, 1967 case that prevented courts from excluding certain testimony in criminal trials “and declared that innocence counts, a lot.” His third pick was Roe v. Wade. “It speaks of the right of women to their bodies,” he said. “It speaks to [limits on] the criminalization of private conduct.”

For his part, moderator Little picked the 1965 privacy case Griswold v. Connecticut, which he pointed out set the stage for both Roe and 2003’s gay rights case Lawrence v. Texas (do you notice how Texas keeps popping up in these decisions?). Little’s second choice was Miranda v. Arizona, and his third was 1932’s Powell v. Alabama, applying the Bill of Rights to the states. For his also-rans he picked Nixon, the First Amendment case New York Times v. Sullivan, and NLRB v. Jones & Laughlin Steel, the 1937 case which cleared the way for the New Deal and kicked off rapid expansion of federal authority.

In the end what was supposed to be 12 cases mushroomed to 24, so it seems the panel covered all the bases. Then again, there was no mention of Lochner v. New York (sure, it’s 101 years old, but it’s not like the panel was unwilling to bend the rules), Engel v. Vitale , UC Regents v. Bakke or Loving v. Virginia, to throw out a few.

If there are any aspiring scholars out there who want to make a case for one of those, or some other momentous decision that didn’t rate a mention, please click the comment button below.

– Scott Graham

A Ninth Circuit opinion (.pdf) issued today takes up the issue of sexually hostile working environments in a fairly extreme context: A prison full of really, really bad men.

Deanna Freitag was a guard at California’s Pelican Bay State Prison. Her sexually hostile work environment was provided by inmates who took to masturbating in front of Freitag — in the showers or in the prison yard — for up to 30 minutes at a time.  And there were details involving a cafeteria tray that won’t be repeated here. 

Suffice to say, a damned hostile environment. Rather than busting the offending offenders over the head with a club (illegal but not entirely unforgivable, perhaps), Freitag filed the appropriate reports to trigger punishments for the deviant detainees. Her supervisors’ responses were underwhelming, to say the least. Reports were discarded or acted on too slowly to be implemented, and then a pattern of retaliation against Freitag was implemented. The pettiest of which: She was investigated for misusing prison resources — using the copier and phone to pursue her complaints against the prison.

A Ninth Circuit panel headed by Judge Stephen Reinhardt didn’t hesitate to find Freitag’s case a slam dunk, as had the lower courts. The panel did back the defendants (a motley crew of prison officials) on the issue of a jury instruction — deemed a harmless error — and some details of Freitag’s $600,000 damages award.

Apart from the lurid details, the opinion is interesting reading for some of the legal arguments used. The defendants argue that Freitag can’t allege a hostile work environment if she’s working in a state prison — a hostile environment full of sickos, deviants and scum, by definition.

This argument would’ve held more water if 1) the prison had fulfilled its duty to attempt to correct the problems, and 2) if Augustine Lopez, the site’s equal employment opportunity coordinator, hadn’t told investigators of the case that the female guard staff were “a bunch of lesbians.”

So the opinion is colorful reading for attorneys who handle employment issues, or any of us who think we’re having a crappy day at work.

 — Brian McDonough

Judging from a decision late last month by a Riverside federal judge, criminal defense lawyers are going have a hard time getting the federal courts to share their outrage over federal prosecutors listening to tapes of their conversations with jailed defendants.

On Aug. 24, Central District Judge Virginia Phillips denied two defendants’ motion to dismiss a murder case arising from a prison brawl on the grounds that prosecutors and FBI agents improperly accessed privileged conversations between defendants and their lawyers. It was one of three California cases — including one in San Francisco — where judges must decide whether attorney-client phone calls are privileged if prisoners know they’re being taped.

In her order, Phillips wrote that since prosecutors didn’t listen to a tape of Alejandro Mujica on the phone with his Pasadena attorney, Paul Potter, there was no wrongdoing. “Defendants have not met their burden for the Court to dismiss the indictment,” she wrote. “The conduct complained of in this case does not rise to the level required to establish a due process violation.” She also declined to preclude the government from seeking the death penalty.

But Phillips did order prosecutors to give her copies of recordings, which she plans to share with defendants in case they want to argue that certain calls should be excluded from the case.

Court-appointed lawyers like Potter — who in an e-mail last week said the Phillips ruling was “not so good” — have been thrown into fits of apoplexy by prosecutors’ arguments that such recordings aren’t privileged. The defense attorneys say that low rates paid to indigent counsel make it unfeasible for them to drive out to jail facilities for routine conversations that could be easily handled over the phone.

In San Francisco, a similar issue came up earlier this summer in a run-of-the-mill gun case when Assistant U.S. Attorney Susan Jerich announced she had accidentally listened to such a taped conversation, and was therefore removing herself from the case because she had breached the privilege between defendant Lloyd Jamison and his attorney Ian Loveseth. But Jerich subsequently recanted, arguing that in fact it is perfectly legal for prosecutors to listen to such tapes, since the knowledge that such calls are being recorded exempts them from privilege. Jerich has since argued that Loveseth should have known the calls weren’t privileged, and should not have talked with his client over the phone.

That case has sparked the ACLU and a defense lawyers advocacy group to file briefs with Northern District Chief Judge Vaughn Walker, who is still considering the motions.

— Justin Scheck