On Monday, November 13, 2016, NAFUSA member Mary Jo White announced she will step down as the head of the Securities and Exchange Commission two years before the end of her term. She will depart at the conclusion of Obama’s term in January. White served as the United States Attorney for the Southern District of New York 1993-2002. She was approved by the Senate through a unanimous consent motion after facing little opposition through the confirmation process. White, formerly a partner at Debevoise & Plimpton, was named in 2013 one of “The Most Influential Lawyers in America” by the National Law Journal.

 

The University of Michigan Law Quadrangle reported in its Fall 2016 issue that NAFUSA member Robert Fiske (SDNY 1976-1980) celebrated in July the 15th anniversary of the program he developed at the law school to launch government service careers.

In July, Fiske Fellows gathered in Washington, D.C., to celebrate the 15th anniversary of the program that helped them get their starts, and the man who made it possible. In 2001, Bob Fiske, ’55, HLLD ’97, created the Robert B. Fiske Jr. Fellowship Program for Government Service to encourage recent Michigan Law graduates to pursue positions as government lawyers. The fellowship pays both college and law school debt for three years plus a stipend; it has supported 49 fellows to date. Fiske, who is senior counsel at Davis Polk & Wardwell LLP, has spent large portions of his career in public service and says the synergy between public service and private practice makes people who do both better at each. “I want graduates to reap the life-changing benefits of government service without having to worry about their debt.” As evidenced by the tributes presented to Fiske at the celebration, he has more than accomplished that mission.

The 2016 Fellows are pictured below with Bob Fiske (left to right) Caroline Flynn, ’13, U.S. Department of Justice, Office of Legal Counsel; Ben Clark, ’14, Consumer Financial Protection Bureau; John Broderick, ’13, environment and natural resources division of the U.S. Department of Justice; and Megan DeMarco, ’16, New York County District Attorney’s Office.

The Law Quadrangle also reported the Fiske was selected by the American Inns of Court to receive the 2016 Lewis F. Powell Jr. Award for Professionalism and Ethics. The award was presented at the Supreme Court of the United States. Fiske is senior counsel at Davis Polk & Wardwell LLP.

NAFUSA member Peter Vaira discussed the “vanishing trial lawyer” in an article printed in The Legal Intelligencer on November 14, 2016, The Important Role of a Trial Lawyer. Vaira points out that “Civil trials have diminished drastically, and, because of that, the number of skilled trial lawyers has declined.” He suggests training young lawyers to learn trial skills and argues this kind of training is the responsibility  of the entire bench and bar. He closes with: “fellow bar members, do not let this great feature of the law practice wither away for the sake of economy in discovery or reducing training costs.”

Vaira (ED Pennsylvania 1978-1983) is a member of Greenblatt, Engle, Funt & Flores in Philadelphia.

NAFUSA member Paul Charlton (Arizona 2001-2007) penned an OpEd on November 4, 2016 in The Washington Post, in defense of FBI Director James Comey: James Comey has always believed in doing what’s right and ignoring politics.

Charlton writes:

Now Comey, the director of the FBI, is being accused of interfering in the presidential election for notifying Congress last week that federal agents had found new emails that could be pertinent to the bureau’s investigation into Hillary Clinton’s private server. What Comey is doing, though, is what he’s always done: standing up for what he believes is right, no matter the political consequences.

 

While many may disagree with Comey’s decisions today, we are better served if we reserve judgment. In the near future, the nation will look back and realize the wisdom of trusting a public servant with moral character.

NAFUSA Past President Margaret Currin was presented with the Order of the Long Leaf Pine at Campbell University Law School on October 15, 2016, during the Law School’s 40th Anniversary Celebration. The honor, among the most prestigious presented in the State of North Carolina, was signed by Governor Pat McCrory.

Currin served as the United States Attorney for the Eastern District of North Carolina (1988-1993). Currin was the first student to matriculate into Campbell University’s brand new law school in the fall of 1976, graduating second in her class, cum laude, 1979. After law school, she served as a legistrative assistant and counsel to U.S. Senator John Tower. She returned to Campbell Law in 1981 as an assistant dean and associate professor. Following her time as U.S. Attorney, Currin returned to Campbell Law and remained until her retirement in May 2013.

Click here to read press release from Campbell Law

On March 31, 2016, NAFUSA member Jack Selden and his firm, Bradley Arant Boult Cummings LLP, won summary judgment on behalf of AseraCare, Inc. in an important False Claims Act case. Judge Karon Bowdre held that the government’s second guessing of physicians’ medical judgment alone cannot prove false claims. Judge Bowdre struck down a $200 million FCA case against the hospice provider, holding that the government’s second guessing of physicians’ medical judgment alone cannot prove false claims.

On Monday, October 17, 2016, Selden and his team from Bradley, urged the Eleventh Circuit to preserve the AseraCare’s high-profile victory with its opening brief. As reported by Law360 on October 18, 2016:

Monday’s brief focused heavily on a pivotal ruling in which the judge limited the DOJ’s evidence in the trial’s first phase to expert testimony and patient records, which were meant to demonstrate objective falsity. On the eve of trial, the DOJ attempted to introduce more evidence, but the judge concluded that its attempt came too late.

According to AseraCare, the DOJ “severely limited its evidence” by not disclosing the evidence sooner, making the eventual grant of summary judgment “straightforward and inevitable.”

“Because of the government’s self-imposed limits on its evidence pertaining to the FCA’s falsity element, the government did not have sufficient evidence to create a jury question,” AseraCare wrote.

In its opening brief, the DOJ in August warned that health care providers could easily escape FCA liability under the district court’s reasoning simply by pointing to differences of opinion among doctors about appropriate treatment. But AseraCare pushed back on that assertion, arguing that its case only came down to differences of opinion because of the DOJ’s limited evidence.

“Although the district court made clear that, ‘without more,’ a difference of opinion among physicians would not be sufficient evidence of falsity, the government ignores the words ‘without more’ when it makes the specious argument that the district court’s holding would unduly impede the government’s ability to pursue fraud,” AseraCare wrote.

Terminal illness means that a patient is expected to have six months or less to live. Medicare patients who elect hospice care get treatment aimed at improving quality of life but also must give up Medicare coverage for potential lifesaving treatment.

In Monday’s brief, AseraCare also accused the DOJ of glossing over statutory language that says certifications of terminal illness should be based on physician judgment.

“The government completely ignores that Congress established a certifying physician’s clinical judgment as the sole criterion for a patient’s eligibility for the Medicare hospice benefit,” according to AseraCare.

The DOJ is also contending that the district judge conflated two required elements of FCA liability: a false claim and knowledge of falsity. Its reasoning was that differences of opinion are relevant only to knowledge of falsity — an element of FCA liability that was to be explored in a second trial phase that never took place.

But AseraCare on Monday said that the DOJ’s contention “misses the mark.” It argued that because evidence presented in the first trial phase was limited to objective falsity, the two elements therefore “could not have been conflated.”

NAFUSA members James Brady and Rich Rossman, joined by former U.S. Attorney Michael Dettmer, have authored an OpEd in the Detroit News on October 18, 2106, urging Michigan local prosecutors to follow the mandate of the United States Supreme Court.

Click here to view “Michigan prosecutors fail juvenile offenders”

 

 

 

The U.S. Supreme Court recently ruled in Montgomery v Louisiana that people serving mandatory life without parole sentences (LWOP) for crimes committed as children must be reviewed and given an opportunity for release if they can demonstrate rehabilitation.  Montgomery reinforced the 2012 ruling in Miller v Alabama that those sentences imposed on minors as if they were adults, “pos[e] too great a risk of disproportionate punishment” and must be limited to that “rare juvenile offender” who is incapable of reform.

The rulings do not mean that those youth must be set free. Instead, they require states to assess who the youth have become and provide them an opportunity to demonstrate their rehabilitation through a rigorous parole board review, stating  “Allowing those offenders to be considered for parole ensures that juveniles whose crimes reflected only transient immaturity—and who have since matured—will not be forced to serve a disproportionate sentence in violation of the Eighth Amendment…Those prisoners who have shown an inability to reform will continue to serve life sentences. The opportunity for release will be afforded to those who demonstrate the truth of Miller’s central intuition—that children who commit even heinous crimes are capable of change.”
…most Michigan prosecutors are not following the spirit and letter of the law. They are not adhering to the Court’s warning that only the rare youth warranted a LWOP sentence and are conveniently ignoring the fact that the vast majority of youth have been rehabilitated.  Eighty-five percent of those serving LWOP sentences have been assigned the lowest security level allowed by prison officials.  Officials assess the security risk level of each inmate from Level 1 (lowest risk) to 5.  Those serving LWOP enter at Level 4 and, depending on their behavior, can move to a higher or lower risk level but cannot go below a Level 2.  When 85% behaved well enough in prison to be at Level 2, you might think they are the ones the Supreme Court had in mind when it wrote “that children who commit even heinous crimes are capable of change” and deserve the “opportunity for release”.
While thirty-eight states abolished juvenile LWOP or have less than 5 people serving that sentence, Michigan has the second highest number of people serving LWOP (363).  That’s partially because Michigan sentences children as young as 14 and those that never fired a weapon.  Where other states follow Supreme Court rulings and develop data-driven policies, Michigan sidesteps rulings and ignores data and facts.  And spends money doing so.  Michigan’s top prosecutor spent taxpayer resources unsuccessfully fighting Miller and Montgomery and now county prosecutors are willing to spend millions more to keep those youth who have long since been rehabilitated in prison.
As former U.S. Attorneys, we would have expected Michigan prosecutors to understand Montgomery’s central tenet that children are uniquely capable of growth and maturation and must be able to demonstrate their rehabilitation.  Instead, too many prosecutors are focusing on the crime committed by a troubled adolescent without exercising the judgement to recognize whether the adult before them today has rehabilitated himself. The first responsibility of a prosecutor in criminal litigation is to see that in each case, justice is done.  In failing to exercise a case by case review pursuant to the mandates of Miller and Montgomery, Michigan prosecutors not only fail our justice system, they fail all of us, the citizens of the State of Michigan.

See related editorial in the September 10, 2016, New York Times: Michigan Prosecutors Defy Supreme Court; http://nyti.ms/2cAbWoW and article from Detroit Free Press: After 50 years in prison, juvenile-lifer may see freedom within months.  http://on.freep.com/2d5LhCM