Archive for December, 2005

Latham gets 29-year murder sentence thrown out

December 29, 2005

Latham & Watkins scored a huge pro bono and PR win on Wednesday, persuading the Second District Court of Appeal to throw out the 9-year-old murder conviction of Mario Rocha.

Rocha’s case had become a cause celebre in Southern California’s Catholic community. Sister Janet Harris’ activism on the case — plus Latham’s advocacy — were the subject of a lengthy front-page feature story in the Los Angeles Times on Oct. 26.

Rocha, 16 at the time, was one of three young men convicted of murder and attempted murder in a gang-related shooting at a Highland Park party in 1996. He was sentenced to 29-years-to-life in prison.

According to the Times article, Harris met Rocha in a juvenile hall where she worked as chaplain. She read his trial transcript, located new witnesses, and wrote and phoned lawyers, legislators and news reporters, according to the Times. In 1998 she gained the attention of Belinda Smith Walker, a lawyer who does work with female juvenile offenders — and wife of former Latham chairman Jack Walker. Along the way the case became the subject of a documentary film, according to the Times.

On Wednesday, Latham’s team — led by of counsel Robert Long — persuaded the Second District to vacate the sentence because Rocha’s trial attorney, Anthony J. Garcia, had rendered ineffective assistance of counsel.

Also on Rocha’s team were Latham partner Marcus McDaniel and associate Thomas “Ian? Graham, plus Pacific Palisades criminal appeals attorney Susan Nash.

— Scott Graham


c u in jail 4 tax ev8n

December 27, 2005

We are not the future. The future is South Korea, where shiny and new for 2006, your cell phone will indict you. That’s right, while U.S. courts still hit snags over sending or posting full legal documents electronically, South Korean prosecutors will be delivering indictments via text message.

Three-quarters of the population there has mobile phones — and they’re always a couple years ahead of us in terms of the most important aspect of handset technology: stuff that turns your phone into something other than a phone.

Via tech blog Boing Boing, we see a Reuters report that notification of indictments, fines and penalties will be available via short text message, direct to your mobile. The upsides are twofold: six-figure savings for prosecutors, and the hope that the jerk whose cell phone rings in the movie theater might’ve just received a fine the size of a house.

Brian McDonough

Lemelson Foundation Gives Up Patent Fight

December 23, 2005

The Lemelson Foundation has taken its submarines and gone home. On Thursday, the foundation filed documents with the U.S. District Court for Arizona stating that it would not challenge a Federal Circuit U.S. Court of Appeals ruling earlier this year that precluded the foundation from enforcing its machine vision patents.

Hundreds of companies have paid inventor Jerome Lemelson and later the foundation that survived him more than $1.5 billion in licensing fees. But in September, the Federal Circuit agreed with the trial judge that the 18- to 39-year delay in prosecuting the patents rendered them unenforceable.

Symbol Technologies v. Lemelson Medical, Education & Research Foundation, 98-1413 PHX, has been closely watched because it involves Lemelson’s use of what have been dubbed “submarine” patents because they are kept on file in the U.S. Patent and Trademark Office for years only to come to the surface after applicable technologies have evolved.

“The Lemelson Foundation’s decision not to appeal the Federal Circuit’s ruling is a fitting end to a 50-year journey through the legal system,” said Jesse Jenner, a Ropes & Gray partner leading the plaintiffs in the case.

— Scott Graham

Don’t Count on Clemency in Allen Case

December 20, 2005

The pending execution of Clarence Ray Allen on Jan. 17 promises another doozy of a clemency case. Allen will be 76 on the execution date — the oldest man to be executed in the country in at least a half-century, according to his lawyers. Plus, he’s blind, diabetic and suffered a heart attack in September. Plenty of reasons weighing in favor of mercy.

On the minus side, Allen has been convicted of murdering four people and conspiring to kill six others — and the facts of the case call to mind Quentin Tarantino directing “The Sopranos.” Allen’s crimes were so heinous his death sentence was one of the very few affirmed by the Rose Bird court — Justice Joseph Grodin wrote the opinion. A few of the highlights:

When Allen telephoned his crime associates to learn if they’d carried out the execution of a 17-year-old girl, they explained they were in the process of strangling her. Allen said, “Do it,” and hung up. The strangulation was then completed.

To discourage one of those associates from snitching, Allen told the associate in front of his 5-year-old son that he was sure he “would like his kids to grow up without harm.”

Allen arranged three murders from prison, where he was once visited by his son, his daughter-in-law and their baby. They smuggled the photograph of a potential hit man out of the prison in the baby’s diaper.

Testifying in his own defense at trial, Allen said that “when a guy puts a rat jacket on himself, killing them would do them a favor.”

In sum, Allen makes Tookie Williams look like Barney the Dinosaur. If Williams didn’t merit clemency, it’s not likely Allen will either.

Scott Graham

Wheel of Justice Goes Around and Around

December 19, 2005

The Ninth Circuit twice told the oft-reversed L.A. federal Judge Manuel Real to rethink his decision to sentence a former L.A. U.S. attorney’s office clerk to probation after she admitted to stealing more than $435,000. Both times, Real declined to change his sentence, accepting the argument that defendant Dorothy Menyweather suffered from post-traumatic stress after being abandoned as a child and later finding her fiancé’s corpse after he was murdered. So, on the case’s third trip to the Ninth Circuit, a split three-judge panel on Friday decided to uphold the ruling “in view of our belief that the court would impose the same sentence again, having steadfastly maintained its position in the face of two opportunities to revise its sentence,? Judge Susan Graber wrote for the majority in U.S. v. Menyweather. She was joined by Judge Michael Daly Hawkins.

Of course, there were other lines of reasoning — namely that under the new federal sentencing guidelines, Real was free to impose the seemingly light sentence. Indeed, on the criminal law-focused Ninth Circuit Blog, Steven Kalar, senior litigator in the San Francisco federal public defender’s office, explains that the Menyweather opinion is a landmark explanation for how criminal sentences should be determined post-Booker. But for entertainment value, Judge Andrew Kleinfeld’s dissent was by far the preferable composition.

“In addition to stealing for herself, Menyweather used stolen money to dramatize herself as a Lady Bountiful,? Kleinfeld wrote, explaining that in addition to buying things for herself, Menyweather purchased a computer for her sister-in-law and gave about $20,000 in stolen money to charities. “She took eight people to a church conference in Atlanta. She even bought eight plane tickets to Israel,? Kleinfeld wrote later. He went on to point out that “Nordstrom’s alone got $53,800 of Menyweather’s bounty.?

In the end, Kleinfeld wrote, the panel should have done what a separate Ninth Circuit panel did earlier this month in another case where Real had made a puzzling decision: Real should be reversed, “and the district court should be instructed to assign the case to another judge.?

Kleinfeld was most perturbed by his opinion that Real — and the majority opinion — failed to impose a reasonable punishment that would deter others from stealing from the government. “$435,000 is a substantial amount of money, a life-changing amount of money for most people,? he wrote. “Many people would eagerly volunteer to spend 40 days in jail on weekends to become that rich. They would earn almost $11,000 per night.?

— Justin Scheck

S.J. Mayor Lawyers Up Over Trash Scandal

December 19, 2005

San Jose’s sticky trash fiasco just got a little more interesting.

Hours after Santa Clara County District Attorney George Kennedy issued a statement saying he would be working with the civil grand jury on the Norcal Waste Systems scandal, Mayor Ron Gonzales announced he had retained prominent Silicon Valley attorney Allen Ruby.

Although no one’s saying it, it sure does look like Gonzales is running scared. Why else retain a high-powered lawyer like Ruby unless you thought you were going to get hauled into court for cutting a secret $11.25 million deal with the city’s trash haulers?

Retaining an attorney is a wise move for the mayor, said San Jose City Council member David Cortese, adding he suspects that an accusation for the grand jury is imminent.

“This is a logical next step,? the councilman said Monday afternoon.

Cortese — a mayoral candidate and former criminal defense attorney — sent a formal letter to the county grand jury earlier this month, requesting it issue an accusation against Gonzales, who is being termed out of office next year. Cortese also sent a letter to Kennedy, asking the retiring DA to launch his own criminal probe.

Kennedy declined further comment, saying that “because of the confidential nature of grand jury investigations, I cannot discuss the details of any investigation at this time.?

Kennedy’s office ousted Mountain View Mayor Mario Ambra from office in 2002 for bullying city staffers.

— Julie O’Shea

Glitch Keeps First District Opinions Out of View

December 19, 2005
Computer problems may have contributed to opinions from the First District Court of Appeal not reaching the California Courts Web site on Monday.  

That’s what Division Three clerk Jacqueline Alameda surmised when the lack of both published and unpublished opinions was pointed out to her Monday afternoon.

One of the missing opinions was San Francisco Trial Lawyers Association v. Health Net of California, A104458, in which the insurer argued that it was in its rights to decline to renew health coverage to the San Francisco Trial Lawyers Association. The case’s docket says there was an unpublished opinion authored by Justice Carol Corrigan on Monday.

But without that opinion, all that is known is just what’s on the docket: “The granting of the preliminary injunction is affirmed. The denial of the petition to compel arbitration is reversed. The matter is remanded for reconsideration of Health Net’s petition. The parties shall bear their own costs on appeal. (also for A104459).?

— Candice McFarland

Alvin Kaufer, 73, Spent 45 Years at Nossaman

December 19, 2005

Sad news today from Nossaman Guthner Knox & Elliott. Partner Alvin Kaufer, a 45-year veteran of the firm, died over the weekend, according to the firm. He was 73.

“Al will truly be missed. He was a highly accomplished trial lawyer, valued mentor to us all and steadfast public servant. He not only helped shape the values of the firm, he personified them, always leading by example,? said Nossaman Managing Partner Scott DeVries.

Kaufer was born and raised in Kingston, Pa. He served two years in the army during the Korean War, then obtained his J.D. at the University of Michigan in 1959. He joined Nossaman the following year.

He had been a member of the American, California and Los Angeles County bar associations. He taught classes at Boalt Hall School of Law, and left his name on various published appellate opinions, including Braude v. Automobile Club of Southern California, 178 Cal.App.3d 994, Committee of Seven Thousand v. Superior Court, 45 Cal.3d 491, and Grupe Development Co. v. Superior Court, 4 Cal.4th 911.

He is survived by his wife, Marca, three children, three stepchildren and grandchildren.

Scott Graham

Firms Abuzz Over Salary Rumors

December 16, 2005

Rumors of associate salary increases at big L.A.-based law firms were swirling around Internet message boards this week, but so far there’s been no official confirmation. Message boards such as “Greedy LA” and “The Monkey Scribe” posted claims by purported Gibson, Dunn & Crutcher associates that first-years would see a $10,000 increase, from $125,000 to $135,000. That would put them on par with firms like Irell & Manella that announced salary hikes earlier this year. In dozens of postings, subscribers debated the alleged numbers for other Gibson classes.

Charles Woodhouse, Gibson’s executive director, said he was unaware of any such news.* Managing Partner Kenneth Doran would not respond to repeated requests for an interview.

One associate reached at the firm Friday said he’d heard first-years were getting a $10,000 raise and all other associates were getting a $5,000 raise. Compensation is being addressed in individual associate reviews, not in a firm-wide memo, he said — which could explain the fast-churning rumor mills. Another Gibson associate said Friday that she hadn’t heard official confirmation and wasn’t sure whether it was true: “Rumors are floating around, but we haven’t heard anything from management.?

Other law firm leaders around Los Angeles said they’re keeping their ears to the ground.

John Sherrell, chairman of Latham & Watkins’ associate committee, said his firm was still evaluating associate compensation. “One of the factors you always look at is the market,? Sherrell said. “We are very sensitive to being sure our associates receive top compensation. It’s obviously a fluid situation.?

At O’Melveny & Myers’ Los Angeles office, Managing Partner Seth Aronson said he’d also heard murmurings of associate hikes at Gibson. “We’re continuing to study the market,? he said. “We look at variety of factors, not any one. We continue to strive to be competitive in the market.?

* UPDATE: The Dec. 20 Recorder confirms that Gibson, Dunn & Crutcher is raising first-year salaries to $135,000. A few smaller firms, such as Irell & Manella, boosted first-year salaries to $135,000 earlier this year. But Gibson, Dunn is the first major California-based firm to do so, and experts expect it will force other large firms to follow suit after years of holding the line.

— Kellie Schmitt, Marie-Anne Hogarth

City May Escape Fajitagate

December 16, 2005

San Francisco may finally be on the verge of extracting itself from the court battles over the 2002 street fight that prompted the city’s so-called fajitagate scandal.

If your memory needs refreshing, the district attorney tried prosecuting the three cops involved in an off-duty fight with two civilian men, but those efforts fizzled with acquittals in criminal court several months ago.

City Attorney Dennis Herrera’s office, though, still has to contend with the two civilians’ federal suit, which claims that the city and some of its top police brass train cops badly and condone the use of excessive force.

On Thursday, U.S. District Judge Jeffrey White hinted the city might be close to nipping that suit in the bud when he tentatively granted the defendants’ motion for summary judgment.

But the plaintiffs still have a chance to save their case. White’s tentative order posed six detailed questions that he still wanted answered before he makes a final ruling. Friday’s hearing on the motion took three hours.

No word yet on when White will make his final ruling. Any way you cut it, though, the curtain won’t be coming down on the 3-year-old fight for a while yet. The plaintiffs could always appeal an unfavorable ruling from White. And if the federal case peters out, they’ll still have state court, where their case against the off-duty cops continues.

— Pam Smith