United States: Pro Bono Update May 2000 - Part 1

That was the night Martha Ofelia Garzon Perez fled her native Colombia. As the strangers pounded on the front door, Ms. Perez left with her daughter through the back door. She has not been back in her house since that night

She contends that such threats and harassment are retaliation for her oppo-sition- party politics. At one time or another in the past five years, her com-panion has been wounded by paramilitary gunmen, two of her four children have been kidnaped, and her brother has "disappeared"—presumably mur-dered by the same people (see sidebar on page 13). Almost two years after fleeing to the United States, she realized that there was no returning to Colombia. At that point, she sought asylum and turned for help to MIHRC—Midwest Immigrant & Human Rights Center, which provides pro bono legal representation to low-income refugees fleeing persecution in their homelands.

Mayer, Brown & Platt's involvement with MIHRC began several years ago and continues to grow. In 1996, Gary Feinerman responded to a MIHRC solicitation to represent Mohamed Hussein Said in a deportation proceeding before the INS immigration court. Mr. Said feared that he would face persecution from a rival, dominant clan if forced to return to his native Somalia. (His father had already been exiled to Ethiopia by the ruling clan.) Gary won Mr. Said asylum in February 1998. He is now in the process of securing a green card and bringing over his family, who found refuge in the United Arab Emirates.

Today, we not only handle cases for the organization, but promote involvement through conferences and event sponsorships. On behalf of MIHRC, Marc Kadish spoke at a January conference at DePaul Law School on "Immigration Consequences of Criminal Convictions for Non-Citizens." We also hosted a luncheon at our offices in January that drew 20 MBP lawyers who heard accounts of our own attorneys' experience with MIHRC as well as those of MIHRC Director Mary Meg McCarthy and current NAPIL Fellow, Maria Baldini-Potermin.

Kate Clark, a third-year associate at Mayer, Brown & Platt and a MIHRC volunteer, was assigned the Perez case. She sought to establish that politically hostile forces within Colombia were allowed to operate, if not with the government's sanction, at least with its knowledge and tacit consent. In a three-day trial before a federal immigration judge, we called two expert witnesses to testify on behalf of Ms. Perez. One witness was a native Colombian judge and professor currently teaching law at Notre Dame; the other was a therapist with extensive experience counseling political refugees. Both helped establish the authenticity of the perceived threat to our client.

Kate Clark handled the case from start to finish, over a period of some nine months. She extols MIHRC personnel for the help they provided in preparing her for trial. "Mary Meg McCarthy [Director of MIHRC] has a lot of immigration law experience and helped me locate expert witnesses and prepare their testimony. MIHRC provides valuable training to attorneys who have not worked on immigration cases before." Kate adds, "In fact, this was my first MIHRC case and my first trial." The INS did not appeal the trial judge's decision. After the trial, Ms. Garzon Perez received employment authori-zation and is currently living and working in Chicago.

Kate is now working on another case with Javier Rubinstein. MIHRC asked Javier to represent one of its clients in an appeal before the Board of Immigration Appeals, involving important constitutional issues. MIHRC won the deportation case at the trial level. The INS is attempting to deport the individual, based on a recent change in the immigration laws, even though he was tried for the same conduct and found not to be deportable in 1994.

In addition to the contributions of individual attorneys, we as a firm co-sponsor a NAPIL Fellowship position at MIHRC. NAPIL is the National Association of Public Interest Law, an organization devoted to training and supporting the next generation of public interest lawyers. A NAPIL Fellowship is used to hire new lawyers to work in low-income and other under served communities, while encouraging careers in public service.

The current fellow is Maria Baldini-Potermin, who is responsible for providing legal services to protect the rights of asylum seekers, refugees, and immigrants detained by the INS in county jails in Illinois and Wisconsin. Prior to this fellowship, she served as a NAPIL Fellow in Minnesota at the Immigrant Law Center, where she represented asylum seekers, immigrants, and refugees, while also providing legal train-ing to attorneys, judges, and law students.

MIHRC is part of Heartland Alliance, the successor organization of Travelers Aid, which was founded in 1888 to help destitute newcomers to Chicago. While its constituency over the past century has only grown, its founding purpose has never wavered—to be an "anti-poverty, human rights organization that advances the human rights and responds to the human needs of endangered populations."

In 1965, Stan Anton earned a Bronze Star and a Purple Heart for his actions as a Marine in Vietnam. Like many rights of, though, he also returned with a case of post-traumatic stress syndrome. He led an unstable life and had problems with the law. His mental illness, though widely understood today, went undiagnosed for years. He was a chronic recidivist.

On August 13, 1998, Mr. Anton was arrested and jailed on a probation violation in DuPage County, Illinois. His emotional state steadily deteriorated during the next 11 days of his incarceration, and on August 24, he attempted suicide in his cell. Thereafter, he was placed on suicide watch by jail officials. This required that he remove all clothing and be placed in a rubberized cell with monitoring by guards every 15 minutes.

According to Mr. Anton's deposition, the temperature of the cell was markedly cold, and when he com-plained about it, his guards at first ignored him, then laughed at and taunted him. After several hours, Mr. Anton requested an emergency visit from a nurse —another request the guards effectively ignored until Mr. Anton reminded them that denying medical attention to a person in custody was a felony. When the nurses came, they discovered that Mr. Anton's body temperature was only 96.8 degrees. The nurses demanded that he be supplied a blanket, but the guards allowed him to keep it only until the nurses left. When they confiscated the blanket again, Mr. Anton suffered an emotional breakdown and began sobbing uncontrollably.

The guards eventually gave Mr. Anton another blanket, and a maintenance worker was brought in who raised the temperature in the cell. During all of this time, Mr. Anton was not offered a warmer cell tem-porarily, a hot shower, or even an additional blanket.

Mr. Anton filed a grievance with the DuPage County Sheriff's Office, who quickly rejected it, claiming that the prisoner had not been placed in a life-threatening situation. Soon thereafter, Mr. Anton filed a pro se civil rights action against the DuPage County Sheriff's Office and guards. Marian Haney was then court-appointed, and Renee Newman agreed to work on the case as well.

If the case looked unpromising at first, some research into the record and case law soon indicated quite the opposite. Marian recalls, "It was a clear case of civil rights violations." Another surprise was Mr. Anton's own poise at the deposition. "The case law told me we had a good chance at trial, but Stan's performance at deposition started me thinking that the defendants might be interested in resolving the case before it got that far."

Three days before the trial was to begin, the DuPage County Sheriff's Office settled for $20,000. A portion of that amount was to go to MBP to defray our costs, but instead of accepting it, we waived our share and presented it to a grateful Mr. Anton. Marc Kadish, who advised on the case, explains, "That extra $10,000 road to recovery. When you look at his record, you realize a little extra help is sometimes needed. We can't always do it on our own."

.Pro Bono and Training

The conscious combination of pro bono and training is what makes Mayer, Brown & Platt's program unique. I have already spoken at two national gatherings about our program. In February, I attended the Tenth Annual Law Firm Pro Bono Seminar in Washington, D.C. I was one of three panelists who spoke on "Using Pro Bono to Support Critical Firm Goals and Activities." In April, I spoke at the annual convention of the National Association for Law Placements. We were the only law firm that was given a workshop to discuss our program.

At the April meeting of the Policy and Planning Committee, approval was given to a new comprehen-sive litigation training program that will strengthen this commitment to both pro bono work and training. During the next year, we will introduce three new training programs and strengthen existing programs. The three new programs will be on Fact Investigation Expert Opinion, and Work Product and Privileges. The existing programs, which will be continued, are Deposition Training, Discovery Planning, and firm wide participation in the basic regional National Institute of Trial Advocacy (NITA) programs. Additional programs are also in the works: Legal Writing, Motion Practice, Mentoring for Senior Associates and Partners, and attendance at Advanced NITA Trial Advocacy Programs.

Many people inside and outside the Firm were involved in the design of the program. It was Chicago partner Mike Feagley's idea. He contacted Anthony Bocchino, the Executive Director of NITA, who did the original design of the program. Ben Lasko, anoth-er Chicago partner, worked with Morgan Cloud, a professor from Emory Law School, who is one of NITA's most experienced faculty members. Morgan will be our outside consultant for the entire program. A committee of partners and associates led by Javier Rubinstein worked on the proposal last fall. Litigation Administration Committee member Mark McLaughlin and I worked with Morgan throughout the winter to complete the program and present it to P & P.

The best way to understand how the new training pro-gram strengthens our commitment to pro bono work is an examination of our Seventh Circuit project. We have accepted 20 appointments from the Circuit in the last year. However, during the past several months we have not accepted any new appointments. We used the time to do a statistical analysis of the 20 appeals and to reflect on the direction of the pro bono program. Debora de Hoyos, Mark McLaughlin, Michele Odorizzi, Tom Durkin, and I recently sent a memo to all Chicago associates that set forth our position on the project, which said in part:

Now that we have completed the design of the Litigation Training Program, we will turn our attention to transactional training. Richard Newman, a former partner at the Firm who has practiced banking and finance law throughout his career, has rejoined the Firm to help develop this program.

As mentioned in Marc Kadish’s column on page 3, Mayer, Brown & Platt accepted some 20 pro bono cases from the 7th Circuit last year. Six of the cases have already gone to oral argument. DeAnna Allen, Neville Hedly, Tom Howard, and Kaspar Stofflmayr have each done one oral argument, while Asheesh Agarwal has presented two.

. Mike Forde, Susan Nystrom, and Nerissa Coyle McGinn recently scored the project's first victory, a reversal in the case of Richard Yarbough of East St. Louis. Mr. Yarbough is an admitted career drug dealer serving 25 years in prison for numerous drug offenses.

Mr. Yarbough's sentence had originally included a con-viction for using or carrying a firearm in connection with a drug trafficking offense. That federal statute carries a mandatory sentence of five years to run con-secutive to all other sentences. The East St. Louis police had conducted three "controlled" drug buys from Mr. Yarbough—drug purchases in which the police have an informant pose as a drug buyer. On all three occasions, Mr. Yarbough displayed a gun. On the fourth occasion, in January 1993, when the police came to arrest Mr. Yarbough, they conducted a search of his home and found a gun lying on a couch. They arrested him on drug charges as well as for the crime of using or carrying a firearm in connection with a drug trafficking offense. He was convicted of both offenses in May 1995.

The matter might have ended there for Mr. Yarbough had it not been for a notable victory by a Mayer, Brown & Platt appellate lawyer pleading his first case before the Supreme Court later that same year. In Bailey v. United States, Alan Untereiner persuaded the Court that the concept of "use" under the statute needed to be interpreted more narrowly than most courts had been doing. The Court held that a person must actively employ the firearm—such as brandishing or firing the gun—to have "used" it under the statute. The decision opened a floodgate of habeas corpus petitions by people convicted under the statute who believed their convictions were not supported by the evidence in light of Bailey. Mr. Yarbough was one of them.

The following year, Congress passed the Anti-terrorism and Effective Death Penalty Act (AEDPA). The AEDPA gave most federal prisoners a window of twelve months in which they could file their habeas corpus petitions. Mr. Yarbough attempted to assemble his habeas petition but was unable to get a copy of his trial transcript for a period of two years, due to his prior attorney's negligence and despite his best efforts to do so. He finally filed his habeas petition in 1998.

The U.S. Attorney moved to dismiss the petition both because it was not timely and because, he argued, the evidence supported a finding that Mr. Yarbough had actually employed the firearm. The district court granted the motion, finding that while the petition was timely, Mr. Yarbough's conviction was supported by the evidence.

Mr. Yarbough appealed to the Seventh Circuit, which issued a certificate of applicability on both issues and appointed Mike Forde to represent Mr. Yarbough in the appeal. In a brief written by Forde with assistance from Nerissa Coyle McGinn and Susan Nystrom, focusing on both the AEDPA and Bailey, Forde argued that Mr. Yarbough's petition was timely, and that the evidence did not support his conviction. After reviewing the brief, the U.S. Attorney conceded both points and asked the Seventh Circuit to vacate his convictions and remand the case to the district court for resentencing. Forde will represent Mr. Yarbough in the resentencing.

"The case offered a rare opportunity to work in the wake of two very recent developments in the law, as well as to represent an indigent defendant who has been poorly represented in the past," Forde said.

Community-Building in Charlotte

Charlotte-Mecklenburg Housing Partnership, Inc. (CMHP) was a response by Charlotte business and government leaders in the late 1980s to the need for affordable housing within the City of Charlotte and Mecklenburg County. It was fostered by the belief that quality, affordable, owner-occupied housing is the cornerstone of good communities.

CMHP's mission is to develop novel approaches and innovative ideas not just to house people, but to build communities. The result is an innovative, flexible, and market-driven organization that provides alternatives to traditional low-income housing projects in the form of attractive and affordable rental and homeownership opportunities.

Bob Mendenhall, a partner in our Charlotte office, was heavily involved in the formation of CMHP as a tax-exempt charitable organization in 1989. For the past ten years, Bob has served as CMHP's General Counsel.

CMHP's accomplishments in the past decade have been extensive. Since 1989, CMHP has "created" 1,400 units of affordable housing for low- and moder-ate- income households, including 300 owner-occupied single-family houses. The typical CMHP homeowner has income below 60% of area median income, but, with the help of CMHP's extensive pre-ownership counseling program and post-ownership monitoring, the delinquency rate is low.

CMHP's role can include either building new homes or purchasing homes in fringe neighborhoods and rehabilitating them for sale or rent to qualifying families. CMHP also helps finance the construction of afford-able apartment developments. CMHP is able to arrange for favorable financing to aspiring homeown-ers through the cooperative efforts of HUD, Charlotte City, and Mecklenburg County government, and financial institutions serving the community. CMHP's continued success relies on financial institutions serving as "partners" in financing projects and providing a first mortgage loan pool for qualifying families. Participating financial institutions include MBP clients Bank of America and First Union.

What is perhaps most remarkable about CMHP's approach is its community-building. The City of Charlotte has targeted certain areas, each as a "City Within a City," earmarking them for redevelopment. CMHP works with the City of Charlotte and neighbor-hood organizations to address the complete needs of a targeted community. CMHP's primary goal is to enhance and revitalize the overall fabric of the target- ed communities, not just bricks and mortar. This includes stabilizing the community, beginning with community safety and the development of active neighborhood organizations that can manage their own needs once CMHP moves on.

According to Bob Mendenhall, "CMHP's approach recognizes the stewardship aspect of good housing by providing self-sufficiency among families and neigh-borhoods with a view towards long term solutions." CMHP has been featured as The New York Times Sunday Magazine cover story as well as on ABC World News Tonight in a story on innovative solutions to solving crime problems in deteriorating neighbor-hoods.

Our own contribution to the effort has come chiefly through Bob's pro bono tax and other legal advice to CMHP on a wide variety of matters. According to Bob, "We have derived some billable work through our relationship with CMHP but, more important, there's enormous good will earned in the Charlotte business community as a result of our pro bono work for this client."

The Pro Bono practice seeks to expand the choices of opportunity for its lawyer-volunteers while providing practical value to the communities it serves. Jennifer Rakstad, a second-year associ-ate, recently returned from Tanzania, where she had spent two weeks researching the current state of women's legal issues in that country as part of a pro bono practice project.

Her visit was the center piece of a cooperative effort between the North western University School of Law and Mayer Brown & Platt in support of the Law School's International Team Project, now an annual undertaking examining the legal systems of certain East African countries.

Last year the North western student teams researched Tanzania's problems of street children, prostitution, land reform efforts, banking reforms and the economic system, and the juvenile justice system. During the trip, they met with both governmental officials and teachers and students from the law school. This year's trip sought to build on the foundation laid last year.

The class consisted of 14 students, along with Associate Dean and Director of the Legal Clinic, Tom Geraghty. Tom's wife, Diane Geraghty, a professor of law at Loyola University School of Law, also traveled with the group, along with Peggy Slater, Administrative Director of Child Protection Services at the Juvenile Court of Cook County, and Dr. Katherine Christoffel, a pediatrician from Children's Memorial Hospital and a member of North western's Medical School Faculty. Beginning in January, the stu-dents attended weekly 90-minute lunchtime classes at North western that familiarized them with the country's legal and political systems, its current public issues, and its historical and cultural customs.

Jennifer decided to participate in the class after reading a memo from Marc Kadish alerting MBP lawyers to the opportunity. Jennifer had to cover all of her own expenses, while the firm agreed to absorb all of her time spent on the project. In the weeks leading up to the trip in mid-March, students also refined their areas of focus, which included, in addition to last year's top-ics, women's issues. The end product of the class is expected to be a report on their research that would be of publishable quality.