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OCDLA Email Summary
August 29, 2007– September 11, 2007
This Issue:
Supreme Court Cases…………..… 2
9th Circuit Cases……….……...….. 2
Oregon Supreme Court Cases......... 6
Oregon Court of Appeals……...… 6
Discussion:
Article of the Week…..………..…..8
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US SUPREME COURT
There were no US Supreme Court decisions during this newsletter
9TH CIRCUIT
United States v. Garcia; United States v. Smith
No. 05-30596; No. 06-30214 (08/10/07)
Before Circuit Judges Kozinski, Tallman, Fisher
http://www.ca9.uscourts.gov/ca9/newopinions.nsf/F30DFE9C6DBB574C8825733300552554/$file/0530596.pdf?op
enelement
CRIMINAL LAW / CONSPIRACY / SENTENCING GUIDELINES
Opinion (Fisher): In August 2005, Martin Garcia and Ronald Smith were among 13 defendants charged with a 25count indictment of distribution of methamphetamines. Garcia’s sentence was enhanced six levels since he was a
leader of the conspiracy and used minors to further the conspiracy. Garcia was sentenced to 1,284 months; Smith
pled guilty and was sentenced to 360 months. The Ninth Circuit addressed Garcia’s challenge to his sentence and
appeal, as well as Smith’s challenge to his sentence. Garcia argued that he joined the conspiracy mid-way through
the operation and could not be charged with conspiracy during the time he was distributing drugs, but not part of the
conspiracy. The government argued circumstantial evidence existed that Garcia was aware of the conspiracy and his
actions prior and after joining the conspiracy were the same. The Ninth Circuit held that no reasonable juror could
have found Garcia a conspirator on these counts, and reversed. The Ninth Circuit remanded several of the other
conspiracy counts. The Ninth Circuit affirmed Garcia’s sentence enhancement because he had been a leader and
involved a minor in the crime. The Ninth Circuit remanded Smith’s sentence, and held that “district courts are not
prohibited in all circumstances from considering a defendant’s drug addiction in choosing a reasonable sentence.”
United States v. Garcia is REVERSED, VACATED AND REMANDED; United States v. Smith is VACATED
AND REMANDED (See case for more specific disposition). [Summarized by Vicky Schwartz]
United States v. Aukai
No. 04-10226 (08/10/07)
Before Circuit Judges Schroeder, Kozinski, Kleinfeld, Hawkins, Silverman, Graber, McKeown, Wardlaw, W.
Fletcher, Gould, Rawlinson, Bybee, Callahan, Bea, and Ikuta
http://www.ca9.uscourts.gov/ca9/newopinions.nsf/30028140CA10BD7B882573330053CB88/$file/0410226.pdf?op
enelement
CRIMINAL PROCEDURE / ADMINISTRATIVE SEARCHES / AIRPORTS
Opinion (Bea): While passing through a standard security checkpoint before boarding an airplane the
Transportation Security Administration (TSA) discovered methamphetamine on the defendant Daniel Aukai.
In district court the defendant argued that the evidence should be suppressed because non-consenting searches
absent probable cause are a violation of the Fourth Amendment. The district court denied his motion to
suppress because airport screening searches are reasonable administrative searches and the reasonableness does not
depend on the consent of the passenger. The Ninth Circuit affirmed the district court’s denial to suppress
the evidence and subsequent guilty conviction of the defendant. When special governmental needs are at stake a
balancing test must be administered to justify the intrusion. The Ninth Circuit held that the state’s interest
in preventing hijackers, weapons or explosives aboard aircrafts outweighs the intrusion on passengers of a
mandatory screening before boarding an aircraft. Such screenings when conducted properly are not more
extensive or intrusive then reasonably necessary. The Ninth Circuit found that the search of the defendant, by the
TSA, was conducted properly and thus the defendant’s consent was not necessary and since consent was not
necessary his subsequent withdrawal of consent was inconsequential. AFFIRMED. [Summarized by Gala Gaines]
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Womack v. Del Papa
No. 06-15069 (08/13/07)
Before Circuit Judges Goodwin, Bybee, and Smith
http://www.ca9.uscourts.gov/ca9/newopinions.nsf/9DBF1253BDC0C24B8825733600550B10/$file/0615069.pdf?op
enelement
CRIMINAL PROCEDURE / INEFFECTIVE ASSISTANCE OF COUNSEL / ADVICE TO TAKE
PLEA AGREEMENT
Opinion (Smith): Defendant Jaramie Womack was indicted by a grand jury of several felony charges. Womack was
advised by his attorney that his “best chance” at receiving a lesser sentence was to plead guilty. Womack entered an
Alford plea at which time the district court conducted a plea canvass to review the terms and conditions of his plea
agreement. During the plea canvass Womack was advised that he could be found to be a habitual offender and could
be sentenced to life without the possibility of parole. Womack said that he understood. At sentencing, the judge
found Womack to be a habitual offender and sentenced him to eight terms of life without the possibility of parole.
Womack filed a habeas corpus petition in state court which was denied. The Ninth Circuit Court of Appeals
accepted Womack’s request for application of appealability from his federal habeas petition on two issues: (1)
whether Womack received ineffective assistance of counsel when his attorney recommended that he accept the
plea agreement, and (2) whether the trial court’s plea canvass was sufficient to support a guilty plea. Womack failed
to address the plea canvass in his briefs so it was regarded as waived by the court. In regards to ineffective
assistance of counsel, the Ninth Circuit held that a person must show grossly deficient performance by their counsel,
and a resulting prejudice. The Ninth Circuit found that because Womack was clearly informed of the possibility of a
life sentence without the possibility of parole by the district court he could not show a resulting
prejudice. AFFIRMED. [Summarized by Candice Duclos]
United States v. Seljan
No. 05-50236 (08/14/07)
Before Circuit Judges Pregerson, Gould, and Clifton
http://www.ca9.uscourts.gov/ca9/newopinions.nsf/CB77EE6802F2B37F8825733700587A8B/$file/0550236opinion
only.pdf?openelement
CRIMINAL PROCEDURE / SEARCH AND SEIZURE / AIRPORTS AND CUSTOMS
Opinion (Per Curiam): Between 2002 and 2003, John Seljan mailed three packages containing sexually suggestive
and explicit material to children in the Philippines. The first package was intercepted and searched by the United
States Customs Service during a currency interdiction operation. The second and third packages were also
intercepted and searched by Customs. In 2003, Seljan was arrested before boarding a plane bound for Manila; his
luggage contained child pornography. In 2004, a grand jury indicted Seljan on multiple counts, including attempted
travel with intent to engage in illicit sexual conduct, use of an interstate facility to entice a minor to engage in
criminal sexual acts, production of child pornography, and possession of child pornography. At trial, Seljan
moved to suppress all evidence derived from the package searches. The district court denied the motion and held
that the searches were international border inspections, that Seljan had consented to the searches by signing the
packages’ air waybills, and that the scope of the searches was reasonable. Seljan was convicted on all counts except
one. On appeal, Seljan challenged the denial of his motion to suppress. He argued the first search violated his Fourth
Amendment rights because the customs inspectors lacked reasonable suspicion and that the subsequent
searches were tainted fruits of the first search. The Ninth Circuit affirmed the denial of the motion to suppress and
held that the customs inspectors were authorized to search the full contents of the first package during the currency
interdiction operation. The Ninth Circuit also held that, under the plain view doctrine, the inspecting officials could
search other items, unrelated to the currency interdiction operation, if correspondence or other documents indicated
evidence of other immediately apparent criminal activity. AFFIRMED. Partial concurrence and partial dissent
by Judge Pregerson. [Summarized by Sara Cassidey]
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United States v. Freeman
No. 05-50401 (08/20/07)
Before Circuit Judges Fisher, Callahan, and Gibson, United States Court of Appeals Judge for the Eighth Circuit
http://www.ca9.uscourts.gov/ca9/newopinions.nsf/C3C4CE1236FE60678825733D004C4579/$file/0550401.pdf?op
enelement
CRIMINAL LAW / ADMISSIBILITY OF EXPERT WITNESS / DRUG TERMINOLOGY
Opinion (Gibson): Kevin Freeman was charged with a three count indictment of conspiracy for possession and
manufacturing of controlled substances. The State produced evidence from a witness, Detective Bob Shin,
regarding terminology Freeman used during cocaine traffic. Shin defined terms for the jury that were both common
words and also words Shin was not familiar with and ciphered based upon Freeman’s conversations with others in
the conspiracy. Shin explained how he determined the meaning of the terms. Freeman appealed, arguing that
allowing Freeman to testify as a lay witness and expert witness was reversible error because Shin was never offered
as an expert witness. The court determined there was error, but the error was harmless because Shin explained how
he came to the determination of the meanings, he did not stray from the specified terminology, and he did not appear
to confuse the jury. AFFIRMED. [Summarized by Vicky Schwartz]
Phillips v. Ornoski
No. 04-99005 (08/21/07)
Before Circuit Judge Reinhardt
http://www.ca9.uscourts.gov/ca9/newopinions.nsf/3D8D5F3C803759D78825733E00596D89/$file/0499005o.pdf?o
penelement
CRIMINAL LAW / DEATH PENALTY / FILING EXTENSION FOR ANSWERING BRIEF
Opinion (Reinhart): The Attorney General of California sought extra time in composing and filing the state’s brief
responding to the accused habeas corpus appeal. Due to the extraordinary nature of death penalty proceedings, the
Ninth Circuit granted an extension to prepare and file the brief, so that the state may appropriately present its case.
GRANTED. [Summarized by Randy Cooper]
United States v. Lambert
No. 07-30060 (08/16/07)
Before Circuit Judges Alarcon, Hawkins, and Wardlaw
http://www.ca9.uscourts.gov/ca9/newopinions.nsf/17E1261D38BCF9B388256FBE005CF4AE/$file/037114.pdf?op
enelement
CRIMINAL LAW / SENTENCING / EDUCATIONAL AGENCY
Opinion (Hawkins): Bernard Lambert pled guilty to conspiracy to defraud the United States. Lambert’s wife was
the director of the Fort Peck Tribes Education Department that contracted with the U.S. for educational grant
money. Lambert took $12,000 for allegedly writing ten grant applications that the U.S. never received. He claimed
the two-level sentencing enhancement, applied by the district court, was invalid since the invoices used were only
under his name and not the Tribes Education Department. The Ninth Circuit affirmed the district court’s use of
this two-level enhancement. The current version of the U.S. Sentencing Guidelines applies a two-level enhancement
when the defendant’s offense includes a misrepresentation on behalf of an educational agency, “regardless of
whether the defendant actually was associated with the organization.” The Ninth Circuit found that in light of the
current version of the Sentencing Guideline and the fact that Lambert’s wife, a co-conspirator, was acting on behalf
of the Tribes Educational Department, the district court appropriately applied the sentencing enhancement.
AFFIRMED. [Summarized by Crystal Gagne]
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United States v. Yida
No. 06-10460 (08/16/07)
Before Circuit Judges Gold, Smith and Covello, United States District Judge for the District of Connecticut
http://www.ca9.uscourts.gov/ca9/newopinions.nsf/DE144ACD8C0A47638825733800729E28/$file/0610460.pdf?op
enelement
EVIDENCE / ADMISSION OF PRIOR TESTIMONY / WITNESS UNAVAILABILITY
Opinion (Gould): In 2006, Yacov Yida was on trial in district court for allegedly smuggling ecstasy into the United
States. David Reziniano, a citizen of Israel, testified that he had conspired with Yida to import ecstasy into the
United States. The jury did not reach a verdict and the district court declared a mistrial. Reziniano was released by
the United States government and deported to Israel. Before his release and deportation, Reziniano agreed to return
to testify at Yida’s retrial. The district court and Yida’s defense counsel were not notified about Reziniano’s release
and deportation. After his deportation, Reziniano refused to return to testify in Yida’s retrial because of
medical problems. The government then filed a motion to admit Reziniano’s former testimony against Yida,
arguing that Reziniano was an unavailable witness as defined under the Federal Rules of Evidence. The district
court denied the motion. On appeal, the Ninth Circuit agreed that the district court was correct in concluding that
there was no Ninth Circuit precedent corresponding to the precise issues of this case. The Ninth Circuit reasoned
that in judging whether the government had exercised reasonable means to procure Reziniano as a witness in the
retrial, the scope of the inquiry should not only be limited to the government’s efforts post deportation. The Ninth
Circuit further reasoned that although the government had deported Reziniano in good faith that he would return
such a belief was not reasonable because of the government’s almost complete failure in taking means to compel his
return. The Ninth Circuit held that this failure, coupled with the government’s lack in informing the district court or
Yida’s counsel of Reziniano’s deportation and the failure of the government in taking a video deposition of
Reziniano, did not amount to the taking of reasonable means in order to establish Reziniano’s unavailability as a
witness under the Federal Rules of Evidence. Furthermore, the Ninth Circuit agreed with the district court
that Reziniano was merely unwilling to travel because of medical problems, not unable to travel. The Ninth held
that this situation also did not rise to the level of unavailability by reasons of medical necessity under the Federal
Rules of Evidence. AFFIRMED [Summarized by Ryan Hickel]
United States. v. Hernandez-Acuna
No. 06-10173 (08/16/07)
Before Circuit Judges Thompson, Rymer and Fisher
http://www.ca9.uscourts.gov/ca9/newopinions.nsf/1FC41961CC8F558E88257338007288F3/$file/0610173.pdf?ope
nelement
EVIDENCE / MAGISTRATE RECOMMENDATION / DUE PROCESS
Opinion (Rymer): Oscar Hernandez-Acuna was convicted of conspiracy and possession of marijuana. Before trial a
magistrate district judge recommended that the evidence indicating conspiracy between the two defendants be
suppressed because the officer’s testimony provided no rational basis to support that conclusion. The district court
rejected the magistrate judge’s recommendation to suppress the evidence without holding a separate evidentiary
hearing and the defendant appealed this decision on due process grounds. The Ninth Circuit affirmed the
district court’s decision to reject the magistrate judge’s recommendation without holding a hearing because the
officer’s testimony was repeated during trial so the district judge did get the opportunity to hear and evaluate the
testimony. The Ninth Circuit concluded that the judge did what he would have done had there been a hearing
regarding the magistrate judges recommendation. AFFIRMED. [Summarized by Gala Gaines]
Espinoza- Estrada v. Gonzales.
No. 05-75850 (08/16/07)
Before Circuit Judges Kleinfeld, Thomas and Leighton, United States
District Judge for the Western District of Washington
http://www.ca9.uscourts.gov/ca9/newopinions.nsf/282E5BB838EF83458825733800727415/$file/0575850.pdf?ope
nelement
IMMIGRATION LAW / REMOVAL / STATUTORY RAPE
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Opinion (Per Curiam): Juan Elias Espinoza-Estrada, a citizen of Mexico, petitioned for review of the Bureau of
Immigration Appeals' affirmance of an Immigration Judge's order finding him removable as an aggravated felon.
Espinoza-Estrada had been convicted of statutory rape for having sex with his then sixteen year old girlfriend, whom
he later married. Espinoza-Estrada argued that because the sex between him and his girlfriend had been consensual,
his conviction did not meet the elements of sexual abuse of a minor, an aggravated felony for purposes of removal.
Applying the categorical approach for determining whether Espinoza-Estrada's conviction qualified as sexual abuse
of a minor, and thus qualified as an aggravated felony, the Ninth Circuit affirmed the Bureau of Immigration
Appeals, holding that the California statute Espinoza-Estrada had been convicted under contained the same elements
as sexual abuse of a minor. Accordingly, the Ninth Circuit denied Espinoza-Estrada's petition for
review. PETITION FOR REVIEW DENIED. Concurrence by Judge Thomas. [Summarized by Rob Wilsey]
OREGON SUPREME COURT
State v. Scott
Case No.: S54482
http://www.publications.ojd.state.or.us/S54482.htm
AREA OF LAW: CRIMINAL PROCEDURE
HOLDING: (Opinion by De Muniz, C. J.) After a person in police custody makes an unequivocal request for
counsel, further questioning that is reasonably likely to elicit an incriminating response violates the person’s right
against self-incrimination and right to counsel.
Respondent Scott filed a motion to suppress the statements he made after being arrested for murder. During the
custodial interview, Scott stated that he wanted a lawyer present. The officer proceeded to inquire about what Scott
had seen on television regarding the homicide, paused for eight to ten seconds, and then responded to Scott’s
request. Scott then agreed to speak with the officer. The trial court initially denied the motion, but then reversed its
ruling upon reconsideration. The state appealed. The Supreme Court held that the substance and manner of the
officer’s question constituted interrogation due to its likeliness to elicit a response. The officer should have ceased
interrogation once Scott made his unequivocal request to speak with an attorney; therefore, Scott’s state
constitutional rights against self-incrimination and right to counsel were violated and further statements should be
suppressed. Affirmed. [Summarized by Emily Pringle.]
OREGON COURT OF APPEALS
State v. Casiano
Case No.: A128972
http://www.publications.ojd.state.or.us/A128972.htm
AREA OF LAW: CRIMINAL LAW
HOLDING: (Opinion by Landau, P. J) ORS 137.635 applies when a defendant has been previously convicted for a
crime before committing the crime for which the person is currently being sentenced.
On April 5, 2005, defendant, James Casiano (defendant) pleaded guilty to a burglary charge that occurred on
November 17, 2004. On April 11, 2005, defendant was convicted for charges of burglary stemming from events
that occurred at different times than the first burglary charge. The state argued, and the court agreed, that the
previous burglary charges constituted “previous convictions.” As such, the court applied ORS 137.635, which the
court described as preventing defendant from having his sentence reduced. Defendant appealed claiming that the
trial court erred in making the determination that his sentence are subject to ORS 137.635. The Court of Appeals
ruled that the trial court erred in applying ORS 137.635 and that error significantly affected defendant's
liberty interest. Vacated; remanded for resentencing. [Summarized by David R. Shallenberger.]
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State v. Miller
Case No.: A126149
http://www.publications.ojd.state.or.us/A126149.htm
AREA OF LAW: CRIMINAL PROCEDURE
HOLDING: (Opinion by Landau, P. J.) In the absence of a complete denial of legal counsel in a criminal trial, denial
of counsel for a portion of the trial is harmless when counsel makes both opening and closing statements, performs
cross and direct examination on multiple witnesses, and is present for all portions of the trial to assist the pro se
defendant.
Defendant appealed his conviction from the trial court, claiming, among other things, that he was improperly denied
substitute counsel during the first day of trial and was forced to proceed pro se rather than receiving substitute
counsel appointed by the court. Defendant stated that the trial court failed to inform him of the risks of proceeding
pro se, and was “structural error.” The Court of Appeals disagreed, stating that defendant’s denial of counsel was
not “complete,” due to the fact that counsel was present at all portions of the trial and that defendant proceeded pro
se for only a short portion of the trial. The Court also concluded that the error did not affect the verdict, and was
therefore harmless. The issue of substitute counsel was not preserved because the defendant did not make such a
request during the trial. Affirmed. [Summarized by Dane Hansen.]
State v. Norkeveck
Case No.: A125781
http://www.publications.ojd.state.or.us/A125781.htm
AREA OF LAW: CRIMINAL PROCEDURE
HOLDING: (Opinion by Richardson, S. J) Dismissal of an indictment without an acquittal of the charges does not
trigger statutory or constitutional former jeopardy protection regarding a subsequent indictment.
Peter Norkeveck was charged with 12 counts of sexual conduct with a girl under 12 years old. A later search
revealed child pornography on his home computer and he was additionally charged with 10 counts of
encouraging child sexual abuse in the first degree. However, the state violated the court's discovery order and the
latter charges were dismissed with prejudice. The state then indicted him a third time for encouraging child sexual
abuse in the second degree based on a different group of pictures found during the initial search of his computer. He
was convicted on 6 of the 12 counts of sexual conduct and 5 of the 10 counts of encouraging child sex abuse. He
appealed his conviction to the Court of Appeals on the ground of former jeopardy, among other defenses. The Court
affirmed his conviction, holding that because Norkeveck's second indictment resulted in a dismissal rather than an
acquittal, former jeopardy did not bar the state from filing later charges. Affirmed. [Summarized by Michael
Fuller]
State v. Betnar
Case No.: A127947
http://www.publications.ojd.state.or.us/A127947.htm
AREA OF LAW: CRIMINAL LAW
HOLDING: (Opinion by Edmonds, P. J.) Oregon’s law against encouraging child sexual abuse is aimed at
criminalizing the conduct that exploits abuse and does not violate one’s right to free expression.
The trial court convicted Appellant Mr. Betnar of 199 counts of encouraging child sexual abuse in the first degree
after officers seized evidence of 200 sexually explicit images found on his computer and CD-ROMs. Betnar argued
that by not requiring proof that the sex abuse depicted in the images actually occurred, the law of encouraging child
sex abuse focuses on expression rather than conduct. Therefore, Betnar argued that the law violated his freedom of
expression. The Court of Appeals rejected this argument, holding that the duplication or printing of child sexual
abuse images is ultimately an extension of the actual abuse. The Court stated that the law’s focus is not on
expression, but rather the conduct of the exploitation that creates economic incentives for causing the sexual abuse
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to occur. Affirmed. [Summarized by Emily Pringle.]
State v. Caprar
Case No.: A121810
http://www.publications.ojd.state.or.us/A121810.htm
AREA OF LAW: CRIMINAL PROCEDURE
HOLDING: (Opinion by Edmonds, P. J.) Where a defendant presents evidence of an unlawful traffic stop and
coerced consent to a search, the State must prove the defendant willingly consented, otherwise the evidence obtained
during the stop will be suppressed.
Appellant, Mr. Caprar, was convicted of possession and delivery of a controlled substance after drugs and a scale
were found in a box underneath his car during a traffic stop. Caprar appealed, arguing that his consent to the search
was obtained during an unlawful traffic stop, and that the evidence obtained during the stop should have therefore
been suppressed by the trial court. The Court of Appeals agreed, finding that the State did not meet its burden of
proof regarding separating the unlawful stop from Caprar’s consent. Reversed and Remanded. [Summarized
by Sarah Blakey.]
State v. Wittwer
Case No.: A125794
http://www.publications.ojd.state.or.us/A125794.htm
AREA OF LAW: CRIMINAL PROCEDURE
HOLDING: (Opinion by Sercombe, J.) To join offenses together as part of a common scheme or plan, the moving
party must prove that the offenses to be joined are all motivated by a common defining event.
Appellant, Mr. Wittwer, was charged with unlawful use of a weapon when he threatened his live-in companion, Ms.
Hess, with a kitchen knife. After failing to appear at his arraignment, Wittwer drove Hess to and from
the courthouse for her grand jury testimony against him, at which time he physically assaulted her. The trial court
consolidated the two following offenses based on the initial altercation, concluding that the consolidation did not
substantially prejudice Wittwer. The Court of Appeals held that there was sufficient overlap between the two
offenses such that they were part of a "common scheme or plan" to avoid blame for the initial altercation. Affirmed.
[Summarized by Jonathan Johnson.]
ARTICLE OF THE WEEK
Star Litigator Faces $5M Malpractice Claim Over Case Taken as a Favor to Judge
Marisa McQuilken
Legal Times
August 30, 2007
Renowned Washington, D.C., litigator Michele Roberts has the kind of reputation that makes other attorneys
salivate with envy.
"She mesmerized juries," says Wiley Rein partner Barbara Van Gelder, who worked for the U.S. Attorney's Office
when Roberts was arguably one of the best public defenders in D.C. "She was, to me, one of my most feared
adversaries."
Still, there is one case that the seemingly infallible Roberts has not been able to win. It began nearly six years ago as
a simple matter, one she agreed to handle as a favor to a federal judge. It has since given rise to a $5 million legal
malpractice claim filed against her by a former client.
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Vaughn Stebbins, whom Roberts represented in a civil case against the District of Columbia and a Metropolitan
Police Department officer, claims that the superstar litigator botched his chance to recover damages for injuries he
received after being shot nine times by the police officer in 1998. Stebbins accuses Roberts of blowing deadlines and
failing to properly serve a key defendant -- mishaps that led to the dismissal of his case.
Roberts isn't the only defendant in the D.C. Superior Court case. Stebbins has also sued solo practitioner Steven
Kiersh and Goodwin Procter, the firm that absorbed Shea & Gardner, where Roberts once worked.
In motions for summary judgment filed in June, Roberts and Kiersh argue that it is irrelevant whether their slip-ups
led to Stebbin's case being dismissed, because a reasonable jury would never have sided with him.
Yet that defense has placed the two lawyers in the awkward position of having to tear apart their original case and
discount deposition testimony given by the expert witnesses that Kiersh had assembled.
Last month, Stebbins' lawyers -- Richard Swick and David Shapiro of Swick & Shapiro -- filed their own motion for
partial summary judgment, alleging that Roberts and Kiersh's negligence was so straightforward that the matter is
undisputable.
Now, it's up to D.C. Superior Court Judge Jennifer Anderson to decide whether the case will proceed to trial.
MEETING EYEBALL-TO-EYEBALL
According to court documents, in September 2001, then-Senior Judge William Bryant of the U.S. District Court for
the District of Columbia summoned Roberts to his chambers. There, Bryant told her about his grandson, Stebbins,
who had been shot nine times by an MPD officer almost three years earlier.
Stebbins, who could not be located for comment for this article, wanted to file a civil action against the District for
negligence and against the officer, John Diehl, for civil rights violations. The statute of limitations was about to run
out on his claims, and Bryant hoped Roberts would take the case.
Roberts, now a partner at Akin Gump Strauss Hauer & Feld, declined to comment, but in an April 10 deposition she
said she had been hesitant to oblige Bryant. At the time, she was dissolving her firm, Rochon & Roberts, and leaving
behind the world of street crimes to handle white-collar defense cases for the firm then known as Shea & Gardner.
In her deposition, Roberts said she only agreed to draft and file a complaint for Stebbins. Beyond that, she said, she
told Stebbins he would have to find a new lawyer.
And that, it appears, is where things get blurry, particularly considering that there is no letter of engagement or
written retainer documenting the agreement, according to court records.
Roberts filed an amended complaint in the U.S. District Court for the District of Columbia on Oct. 15, 2001, shortly
after filing the original on Sept. 27. After that, she said in her deposition, she assumed she was off the case.
According to court documents, Stebbins denied knowing he was supposed to find new representation. And Roberts
said she was surprised to receive notification that she was still his counsel when the first status conference was
scheduled in late May 2002 -- seven months after the amended complaint was filed.
Roberts attended that initial conference but testified that she then recruited Kiersh to take the case. Both Roberts and
Kiersh attended the second status conference a month later, where Roberts told Judge Reggie Walton that there was
a chance she would leave the case. After the conference was over, Roberts recalled in her deposition, she sat in on a
meeting where Stebbins agreed to let Kiersh take over as lead counsel.
Although Stebbins said during his Feb. 19 deposition that he was under the impression that both Roberts and Kiersh
were now representing him, Roberts insisted the arrangement was perfectly clear.
"I do recall at that meeting, he said eyeball-to-eyeball, 'I am fine with Steve. You can go,'" Roberts said, according
to a transcript of her deposition.
-9-
Roberts did not deny that she never officially withdrew her name from the case, but in her deposition she said she
thought she made her intentions obvious -- albeit orally -- to her client.
But Barry Cohen, a partner in Crowell & Moring's professional responsibility practice who is not involved in the
Stebbins case, says Roberts' word might not be enough. "If she never formally terminated the relationship but ceased
being active on the case, she could continue to have responsibility for even Kiersh's conduct," he says.
In addition to failing to withdraw her name, Roberts also never served process on Diehl.
"My recollection was, I was going to wait to find out if the District would accept process," she explained during her
deposition. She said she assumed Stebbins would find another attorney to serve the officer once the District
answered the complaint.
But Diehl never did get served -- neither by Roberts nor by Kiersh.
"I would say that I must have overlooked it," Kiersh, who also declined to comment, said during his deposition on
April 23.
That oversight is now a major factor in Stebbins' malpractice suit because it ultimately led to his civil case getting
dismissed by the federal court.
Kiersh did file a motion to obtain permission to untimely serve Diehl, but it was denied. By that point, Kiersh had
assembled and deposed expert witnesses and, according to Stebbins' deposition, indicated he had "a strong case."
Nonetheless, he stipulated to having the case dismissed because he considered the civil rights claims against Diehl
his only "federal jurisdictional hook."
Kiersh attempted to refile the case in D.C. Superior Court but was unsuccessful, as the three-year statute of
limitations had expired. That case was dismissed in July 2004.
CAR CRASH LEADS TO GUNPLAY
But unbeknownst to Roberts, she was not yet rid of Stebbins. He hired Swick and Shapiro and filed suit in April
2006. The complaint seeks $5 million in damages for professional negligence. (Akin Gump, where Roberts currently
practices, was also named as a defendant, but the firm was dismissed from the case on July 21, 2006.) Swick and
Shapiro declined to comment.
Anthony Bisceglie of Bisceglie & Walsh is representing Roberts, and David Durbin of Jordan Coyne & Savits is
defending Kiersh. Both attorneys declined to comment. In court papers, they argue that a reasonable jury never
would have sided with Stebbins in his underlying civil case against the District and Diehl.
But in court papers filed by Stebbins, his lawyers cite testimony from Kiersh's former expert witnesses in an attempt
to prove otherwise.
According to court records, one expert on police practices, James Bradley Jr., testified that Diehl's version of the
incident was racked with implausibilities. He noted that the presence of posterior wounds on Stebbins indicated he
was trying to run away from Diehl, contrary to the officer's testimony.
Cohen, though, says the fact that witnesses used by Kiersh in the civil suit are now being used against him and
Roberts is nothing to be embarrassed about: "I don't think the judge will be surprised by it."
Cohen says attacking "the case within the case" is a "very conventional defense to legal malpractice."
Whether Stebbins' civil case had any merit is, indeed, debatable. Not surprisingly, his account of getting shot during
the early morning hours of Sept. 30, 1998, differs significantly from Diehl's version of the events.
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Stebbins had a fully loaded, unregistered handgun in his waistband when his parked car was approached by two
police officers looking for robbery suspects that morning. One of them noticed the gun and radioed an alert, which
Diehl heard while patrolling nearby. Stebbins fled, eventually speeding by Diehl, who pursued him until Stebbins
crashed into a parked car.
Diehl said he believed Stebbins had his gun in hand when exiting the car, but in his deposition, Stebbins testified
that he put the gun back in his waistband after it fell out during the crash. Diehl said he repeatedly told Stebbins to
drop the gun, but Stebbins refused. When it was over, Diehl had fired 12 rounds, hitting Stebbins nine times.
As a result, Stebbins, just shy of his 19th birthday at the time, suffered internal injuries and had to undergo surgery
to walk again. But in their motions, Roberts and Kiersh both claim Diehl -- who they originally argued had a pattern
of excessive force -- acted reasonably.
Jackson & Campbell partner Clifton Mount, who has represented numerous clients in excessive-force cases against
the Metropolitan Police Department, says the fact that Stebbins was armed "substantially weakens" his case. And
while Diehl had a record of alcoholism and one prior indictment for excessive force, Mount, who is not involved in
the Stebbins case, says there typically has to be more than one incident to establish a practice-or-pattern claim.
Also unclear is whether Diehl misidentified Stebbins as one of the robbery suspects the first two officers had been
pursuing. In the civil complaint, Roberts claimed Diehl was guilty of negligence for wrongly assuming Stebbins was
one of the suspects.
Perhaps Stebbins' strongest claim in the underlying case was that the police department mishandled its internal
investigation of the shooting.
At the time, those types of investigations were referred to the department's homicide division. With Stebbins'
incident, it took the division five months to relinquish the case file to the lieutenant assigned to independently
investigate it. Within that time, Stebbins' passenger, the only eyewitness who was not a police officer, died.
Mount says that witness could have been invaluable. "It would have been extremely significant to get a deposition
from him before he died," he says.
WHY TAKE THE CASE?
Stebbins also wasn't a very sympathetic plaintiff. For one, he pleaded guilty to destruction of property and carrying a
pistol without a license in connection with the shooting incident. He was sentenced to three years of supervised
probation, according to court papers. Stebbins has more recent convictions on his record, too, including one for
misdemeanor possession of an unregistered firearm in 2003 and several for marijuana possession as recently as
2004.
All this raises an obvious question: Why would Roberts attach her name to a case if she genuinely believed it was
impossible to win?
Deborah Jeffrey, who specializes in legal malpractice at Zuckerman Spaeder, says it is not unusual to take a case as
a favor. "We all have friends who are judges," says Jeffrey, who is not involved in the Stebbins case.
During her deposition, Roberts said she did not consider Bryant a friend, but she said he was highly regarded by the
African-American community. She recalled seeing him at various functions and making it a point to say hello.
(Bryant died in 2005.)
Jeffrey also emphasizes that Roberts was dealing with a fast-approaching deadline. "Particularly if you're up against
a statute of limitations with filing to begin with, you may have to file the case on a lot less than perfect information,"
she explains.
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Crowell's Cohen, though, says Roberts had to have had some faith she could develop the case. "If she was going to
put her name on the complaint, she had an obligation to make sure that the minimum requirements were satisfied."
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