On the 50th anniversary of the Supreme Court's 1963 decision in Gideon v. Wainwright—the seminal decision requiring state courts to provide counsel for criminal defendants who cannot afford their own lawyer—White & Case’s Global Head of Mergers & Acquisitions John Reiss decided to take his own bold action. That day he read an article about a man in another state who was given a substantial term in debtor's prison on a matter that would have been easily resolved with the help of a lawyer.
In my opinion, we have a responsibility to use our expertise to help people who have a very powerful system working against them and who have a limited ability to defend themselves.
John Reiss, Partner, New York
While he had done corporate pro bono work for nonprofit organizations, John decided then and there that he needed to help close what Judge Lippman calls the "justice gap" and bring his team's skills to bear by representing individuals in need.
"In my opinion," said John, "we have a responsibility to use our expertise to help people who have a very powerful system working against them and who have a limited ability to defend themselves. While the system works against the underprivileged in countless ways, what I find the most disturbing is its willingness to wrongfully deprive them of their freedom. As Bryan Stevenson, Executive Director of the Equal Justice Initiative, has said, the system ‘treats you much better if you're rich and guilty than if you're poor and innocent. Wealth, not culpability, shapes outcomes.' I wanted to do something to level the playing field."
Shortly thereafter, The New York Times began a series of investigative reports on a Brooklyn homicide detective named Louis Scarcella who may have engaged in misconduct to convict dozens of people on murder and other serious charges. According to The Times, Scarcella seemed to be able to elicit confessions when no other detective could, but his cases involved "disturbing patterns, including the detective's reliance on the same eyewitness, a crack-addicted prostitute, for multiple murder prosecutions and his delivery of confessions from suspects who later said they had told him nothing."
The Brooklyn District Attorney's Office took the highly unusual step of ordering a review of 50 cases handled by Scarcella during the crack epidemic of the 1980s and 1990s. At the same time, The Legal Aid Society, which had been original defense counsel in many of these cases, began an in-depth examination of its own files. White & Case agreed to handle two of these cases pro bono. John immediately volunteered and put together a team of M&A associates—Nicole Lonsway, Evan Hill and Dovrat Bashan— to handle one case, while litigation partner Doug Baumstein and a group of litigation associates took on the other, as well as advising the M&A team.
There was an enormous amount of work to do. The M&A team first reviewed the voluminous case file, including trial and appellate court transcripts, motions, police reports, letters and decisions. Then they had to locate critical trial transcripts that were missing from the file and work with the Brooklyn Supreme Court to obtain the materials from the archives. Once the case file was complete, the team collaborated with Legal Aid to locate key people involved—not an easy task when the events leading to the accusations occurred more than 25 years ago.
Despite the lapse of time, the team found a key witness in prison. John and a Legal Aid representative visited the witness and obtained from him a sworn affidavit, which provided important exculpatory evidence for our client. The team also has pressed the New York Police Department under New York's Freedom of Information Law to obtain important police records related to the case. Both White & Case teams are working closely with lawyers from other law firms representing other Scarcella-related clients to pool resources and share knowledge. The firms have also chipped in to engage a private investigation firm to track down key witnesses and information.
Associate Nicole Lonsway was struck by the need to painstakingly peel back layer upon layer to get to what really happened to her client. But, she said, "It is exciting knowing that we are working on a high-profile matter with the potential to right a wrong and have a tangible impact on the criminal justice system."
Amicus briefs on death penalty cases
Our criminal pro bono work extends to another area that taps the international network of White & Case: filing amicus briefs for foreign sovereigns in death penalty cases where the defendants have foreign citizenship or should have learned of it to make use of the consular support and resources it brings.
Global Pro Bono Practice Leader Ian Forrester led a multi-office team that filed such a brief for the Federal Republic of Germany as amicus curiae in a South Carolina Application for Post-Conviction Relief on behalf of Charles Christopher Williams, whose father is African-American and whose mother is a German citizen. Convicted of killing his girlfriend and sentenced to death, Williams's lawyers failed to conduct the minimal diligence that would have revealed his client's German citizenship and thus afforded him substantial help from the German government that could have changed his sentencing outcome. The team worked closely with the German consulate in Atlanta, local counsel in South Carolina and Reprieve, a London-based nonprofit that assists prisoners on death row, to research the issues and file the brief.
We continued our work with Reprieve on a death penalty amicus brief in the case of Pete Carl Rogovich, a US citizen with a Swedish nationality application pending, who has been on death row in Arizona since being found guilty of murder in June 1994. Rogovich has been diagnosed with serious, lifelong mental illness. New York partner David Hille and associate Bryn Pallesen initially represented the Swedish Parliamentary Group on Human Rights as amicus in Rogovich's case. But because it deemed the question of the constitutionality and humanity of executing the mentally ill as so critical, the European Union itself intervened and asked to assume the role of amicus. The case is now working its way through the appeals process and may well advance to the US Supreme Court.
White & Case's pro bono counsel Louis O'Neill, who worked on the Williams case and one of the Scarcella investigations, said, "Whether we are taking on a death penalty matter or challenging someone's misdemeanor conviction, our pro bono criminal appeals practice helps our clients get a fair shake in the justice system.
White & Case has undertaken pro bono criminal representations for the following groups in the US:
- Appellate Advocates
- Bronx Defenders
- Center for Appellate Litigation
- Criminal Justice Act Appellate Panel for the US Court of Appeals for the Fourth Circuit
- The Legal Aid Society
- Miami Dade County Public Defender
- Pro Se Office of the Southern District of New York
- Queens County District Attorney's Office (as Special Assistant District Attorneys)