Faculty of Federal Advocates
P.O. Box 12025
Denver CO 80212-0025
Administrator:
Patricia Murphy
pmurphyffa@aol.com
Copyright © 2004-2008
Faculty of Federal Advocates
Faculty of Federal Advocates Newsletter
September 2005 Volume 8, Number 2 Table of Contents:
Muslim
Prisoner Prevails in FFA Counsel/Co-Counsel Case On July 27, 2005, Colorado state prisoner Anthony Caruso prevailed in his ten-year fight to force Colorado Department of Corrections (“CDOC”) officials to lift the burdens they wrongly imposed on his right to practice Islam in prison. Diane King and I represented Mr. Caruso at trial through the Faculty of Federal Advocate’s Counsel/Co-Counsel program. Mr. Caruso brought suit in 1995 to seek relief from the CDOC’s refusal to accommodate the practice of his faith at the Arkansas Valley Correctional Facility (“AVCF”), located just outside Crowley, Colorado. He pursued the case pro se until it was referred to the FFA during the spring of 2004. Diane and I stepped in to represent Mr. Caruso last July. The case was tried to the Court on March 22-23, 2005, before United States District Judge Marcia S. Krieger. At trial, Mr. Caruso, a practicing Sunni Muslim, challenged the CDOC’s refusal (1) to provide him with a proper halal diet; (2) to allow him to participate in religious classes with other members of the AVCF Muslim community; and (3) to permit him to wear a proper Muslim headcover outside of his cell and religious services. Recognizing that each of these practices are legitimate exercises of Mr. Caruso’s religion, Judge Krieger ordered the CDOC to both begin offering Mr. Caruso a proper religious diet and cease enforcing their current policy restricting Mr. Caruso’s right to wear a proper religious headcover. With regard to Mr. Caruso’s religious education claim, the Court noted that the CDOC refused to provide regular Muslim religious classes until the eve of trial but found that it would be inappro-priate to grant Mr. Caruso prospective relief on this claim because the CDOC was not denying him the right to participate in such classes at the time of trial. Judge Krieger’s ruling comes in the wake of a United States Supreme Court decision rejecting an Establishment Clause challenge to the constitutionality of the Religious Land Use and Institutionalized Persons Act (“RLUIPA”), which provides heightened protection for the religious freedom of state prisoners. The United States Department of Justice intervened in Mr. Caruso’s case to address the Establishment Clause issue and a number of other challenges to the constitutionality of the RLUIPA the CDOC raised. With the trial behind us and a ruling in hand, I think it is worthwhile to pass along a few comments to the FFA membership about the Counsel/Co-Counsel program. First, I want to renew the call for Counsel/Co-Counsel Program volunteers. My experience working with Diane on this case provided me with a mentor in the true sense of the word. She guided me as I navigated my way through everything from first depositions to closing arguments. And she helped me develop as a lawyer more than she can imagine along the way. As the case progressed, I was able to see her influence in all of my work, whether it was for Mr. Caruso or for other matters I was handling at my firm. For those of you with five or fewer years of experience, it is safe to assume the Program’s benefits are obvious. I wonder, however, whether those of you who have the experience to supervise a junior lawyer fully appreciate the impact your participation can have on a green attorney getting started. My second comment is directed to the partners in law firms who determine whether associates will have the opportunity to volunteer. Encouraging associates to participate and supporting those who do will provide you with benefits that general pro bono work cannot always offer. From the moment I asked for approval from Morrison & Foerster to take Mr. Caruso’s case through post-trial briefing, the firm has given me its full support. When I needed to block out considerable segments of uninterrupted time for the case, I was told that I should treat it like I would treat billable cases I was working on with partners in Denver and New York. If this was not accepted practice at Morrison & Foerster – if I was instead expected to handle pro bono work on my own time – I never could have brought Mr. Caruso’s case to trial. I am confident that any sacrifice the firm made on the front end by freeing up my time, however, was more than recouped in the form of hands-on training that affects the work I am able to produce for billable and pro bono cases alike. In addition to providing trial experience, my work for Mr. Caruso has given me a much clearer appreciation for how individual pieces of a case fit into broader litigation strategy. By supporting participation in the Counsel/Co-Counsel program by associates in your firms, you will open the door to work experience that even the best CLE programs cannot replicate. Finally, because a large number of the Counsel/Co-Counsel cases involve prisoner litigation, I want to comment on tackling this type of case. Although I was interested in taking on pro bono work when I started with Morrison & Foerster, I was not nearly as passionate about it as many of the lawyers at the firm. I have to confess that I basically took Mr. Caruso’s case to get into the courtroom and because I was flattered when Diane called to see if I would work with her on it. I certainly did not see myself as an advocate for prisoners’ rights. The more I learned about prison conditions as this case progressed, the more I came to understand that there are a shocking number of long-standing problems screaming for legal redress. Congress very effectively pulled most lawyers out of this area of the law by stripping away any financial incentive to take on prison litigation. As a result, valid claims are often buried in the piles of pro se cases filed each year. Without the assistance of counsel, the prisoners trying to pursue these claims may not have any meaningful recourse for the violation of their rights. Thank You from the Counsel/Co-Counsel Program The Faculty of Federal Advocates Counsel/Co-Counsel Program wishes to thank Troy Rackham of McConnell Siderius Fleischner Houghtaling & Craigmile, Trip Demuth of Faegre and Benson, Jennifer Pearce of Faegre and Benson, Laura Hutchins of Faegre and Benson, Joel Cantrick of Ducker Montgomery Lewis and Aronstein, James Prochnow of Greenberg Traurig, Declan O’Donnell of Declan Joseph O’Donnell, PC, Richard LaFond of Lafond and Sweeney, Catherine Chan , and Brent Cohen of Rothgerber Johnson and Lyons, for accepting cases this year as part of the program. The program provides needed legal representation to pro se litigants in cases referred by the U.S. District Court. Through the program, experienced mentor attorneys are paired with attorneys with less experience in federal court. This provides a unique learning opportunity for a newer attorney and allows a mentor lawyer to take a case with the assistance of co-counsel. If you are interested in handling a case, please contact FFA Administrator Patricia Murphy at 303-455-0927 (email pmurphyffa@aol.com) or Nancy Rutledge at the U.S. District Court, 303-335-2139. Colorado Lawyers Helping Lawyers Colorado Lawyers Helping Lawyers is a volunteer-based lawyers’ assistance program. They provide lawyer-to-lawyer assistance and resource/referral access for all Colorado attorneys, judges, law school students and graduates regarding a myriad of intervention and prevention issues common to the practice of law. They also respond to a range of issues, including issues related to substance or alcohol abuse, mental health issues and destructive behaviors or impairments. CLHL’s services are always free. For more information about CLHL, visit their website at clhl.org or contact them for confidential assistance by telephone at 1-800-432-0977 or 303-832-2233 or by email at confidential@clhl.org. The United States District Court for the District of Colorado implemented mandatory Electronic Case Filing (ECF) on civil cases June 20, 2005. As of August 19, 2005, over 1,600 attorneys have filed 7,056 documents electronically. That is 63% of the civil documents filed with the court. The court has registered over 4,500 attorneys for ECF and granted one application by an attorney to file documents in paper. There have been 147 documents filed in paper form with the court by attorneys in violation of the ECF Procedures. Helpful Tips
Coming Soon
Tenth Circuit
Proposed Rule Changes The Tenth Circuit Court of Appeals is in the process of circulating a number of rule changes for public comment. While no deadline has been set, the recommendation is that comments should be given by the end of September. Comments may be mailed to the clerk or made on the Court’s website at www.ca10.uscourts.gov under Rules & Forms. In addition to increasing the number of copies required throughout the rules and modifying the rules as to litigation by prisoner, the following are the proposed changes: 10th Cir. 25.1 is also a wholly new provision (which by now, we have all heard about). The change authorizes the adoption of the Electronic Case Filing system. 10th Cir. 27.2 (A) allows a dispositive motion dismissing an entire case pursuant to Fed. R. App. P. 31(c) (consequence of failure to file) or 42(b) (dismissal in the Court of Appeals). Through this change, a potential conflict between a local rule and a FRAP rule is avoided. 27.2 (d) is a new addition to the rule, providing that a motion to enforce a plea agreement may be filed as a dispositive motion. A copy of the agreement, plea hearing, and sentencing hearing must be attached to the motion. The new rule incorporates the Hahn rule, see 359 F.3d 1315 (10th Cir. 2004). 10th Cir. 29.1, Amicus Briefs on Rehearing, is entirely new. The rule states that the court will receive but not file proposed amicus briefs on rehearing. The court will not consider actual filing of the briefs until shortly before the oral argument on rehearing en banc if granted or before the grant or denial of panel rehearing. The new rule avoids recusal problems. 10th Cir. 46.1, Entry of Appearance, requires that once an appearance has been entered, the clerk must be notified of any change of address. 10th Cir. 47.3, Judicial Conference, changes the word “required” to “permitted” and “will” to “may,” thus allowing a judicial conference to be convened every other year, but no longer requiring that a judicial conference be held. Addendum I, Criminal Justice Act Plan, creates an appellate panel for appointment of counsel when trialcounsel is relieved. The panel will be composed of private attorneys and the Appellate Division of the Federal Public Defender’s Office for the District of Colorado. The Plan sets out the criteria for appointment and creates a standing committee to review the qualifications of applicant attorneys for the panel. Addendum II, Plan for Appointment of Counsel in Special Civil Appeals, removes requirement that the person has requested an appointment of counsel. Addendum III, Plan for Attorney Disciplinary Enforcement, has only minor modifications. Section 6 eliminates the requirement that the chief judge’s approval be given before an order directing the attorney to show cause why the court should not impose the discipline. The show cause order now “shall” issue. The changes also eliminate that matter be referred to a disciplinary panel when misconduct or allegations of misconduct concerning the appellate process when the misconduct or allegation comes the attention of a clerk or a judge. Again, an order to show cause “shall” issue. Section 7 designates the judge, instead of the panel, to direct the entry of an order imposing discipline. 7.2 adds that “resignation from the bar of this court while a disciplinary proceeding is pending—after the clerk has issued an order to show cause—is consent to disbarment.” Two Recent FFA CLE Programs Provided Useful Insights from Judges, Court Personnel, and Federal Practitioners The Paperless Trial: Persuasive Use of Courtroom Technology, by Reid Neureiter On April 28, 2005, Holland & Hart partner Gregory Goldberg made a brown bag luncheon presentation in the Alfred A. Arraj Federal Courthouse to FFA members and others, titled “The ‘Paperless’ Trial: Persuasive Use of Courtroom Technology.” Mr. Goldberg provided a demonstration using the Court’s video screens and other equipment as to the different ways technology could assist in telling the client’s story. The program was introduced with remarks by Federal District Judge Wiley Y. Daniel. Judge Daniel provided insight on the importance of technology in the modern trial to juror and judge alike. The principal lesson from both Judge Daniel and Mr. Goldberg’s talks was that jurors and judges expect counsel to be prepared for and ready to use all the techniques of the modern courtroom, including the presentation of digital exhibits in electronic form. The attorney who does not learn, or does not have the capacity via paralegals or other assistants, to use such tools is at a distinct disadvantage vis-a-vis the lawyer or law firm that does have that capability. Both Mr. Goldberg and Judge Daniel also emphasized the importance of advance preparation and practice with the exhibits and the equipment. The Federal Court encourages lawyers who expect to use the extensive technology available in the Federal Courthouse to visit the courtroom in advance, and go through a “trial run.” Mr. Goldberg suggested lawyers to bring important witnesses to the courthouse in advance to see and use some of the equipment – something Mr. Goldberg had done during his time as an Assistant United States Attorney. A comfortable witness and an adept attorney can take advantage of some of the interactive features of the technology, for example by having the witness use a stylus to make marks on a screen, emphasizing certain areas of an exhibit being displayed to the jury. The program concluded with a series of questions from the audience to both Judge Daniel and Mr. Goldberg. The Faculty of Federal Advocates extends their gratitude to these men for their time and excellent presentations. Orientation for the United States District Court, by Marci Gilligan On June 17, 2005, the FFA sponsored its second annual Orientation for the United States District Court of Colorado. The event was designed to provide an overview of the United States District and Bankruptcy Courts for both attorneys new to the practice of law and more-experienced attorneys who are new to practice in the federal courts. The program consisted of overviews and question-and-answer sessions with a number judicial officers including Chief Judge Lewis T. Babcock, Senior District Judge Richard P. Matsch, U.S. Bankruptcy Judge Elizabeth E. Brown and Magistrate Judge Patricia A. Coan. The various judicial officers provided insight into the progression of cases through the federal courts, as well as practical considerations in bringing and trying a case in federal court. In addition to the judicial speakers, participants heard from Chief Deputy Clerk Stephen P. Ehrlich who covered a range of topics from the implementation of e-filing to application of the local rules. Finally, the participants heard from a number of local attorneys with varying ranges of experience practicing in federal courts, who shared helpful tips, war stories and information they wish they knew “when.” The event, for which attendees earned 5 general and 1.2 ethics CLE credits, was well-received by all participants. The FFA looks forward to continuing with this program in the coming years. Comments and Contact Information IF YOU HAVE ANY COMMENTS OR AN ARTICLE YOU WOULD LIKE CONSIDERED
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