Pro Bono Update December 1999 - Part 1

John seized his opportunity, graduating from the Milton Hershey School (MHS) in 1971 and going on to earn graduate degrees in both business and law from Northwestern University. He eventually joined MBP in 1996 as a Partner in our securitization group. In January of this year, when John agreed to serve as a Board member of the Milton Hershey School Alumni Association, he found himself thrust into the middle of a raging controversy as to whether the MHS Trust's ample endowment was being used in accordance with the wishes of the founder's Deed of Trust.

The original $60 million endowment in shares of the famous chocolate company— Milton Hershey's entire fortune — had mushroomed into a diversified portfolio now worth an estimated $5 billion. But in the five decades since Milton Hershey's death, the Board of Managers of the MHS Trust had implemented a number of deviations from the Deed of Trust — including substituting the Board of Managers for the School as the sole beneficiary of the MHS Trust — with most of the decisions made behind closed doors and without leave of the Orphans Court, which oversees charitable trusts. Hershey Junior College, one of the first junior colleges in the U.S. when it opened in 1938 and free to all residents of Derry Township, had been closed by the Board of Managers. Mentoring and transition programs, including the Hershey School's Placement Department, had been terminated. School real estate had been sold, contrary to the provisions of Mr. Hershey's Deed.

Despite a growing community of financially and socially disadvantaged children, enrollment at the Milton Hershey School was down. Incidents of criminal activity within the school were up. And a 1992 independent report and a 1998 accreditation report both showed school quality and effectiveness as mediocre to poor.

In early 1999, the Board of Managers sought to add a new and competing purpose to the MHS Trust. Arguing that the "trust has partially failed because they cannot prudently spend all of the income in support of the School," they filed a cy pres petition asking the Orphans Court to give them broad discretion over an openended, new purpose in direct competition with the MHS Trust's original purpose.

Specifically, they sought to divert $25 million of Trust assets to fund the creation of an Institute to serve as a think tank for the study of the education of underprivileged youth, as well as $25 million per annum to operate the facility. As precedent, they cited a $50 million project they funded in 1963 (without a public hearing) to build a medical school for Penn State University.

Working pro bono on behalf of the Alumni Association, John Halbleib brought in the expertise of wealth management Partner Scott McCue and a Mayer, Brown & Platt team of summer associates to oppose the Board's actions. Scott pored over the entire history of the case dating back to 1909, and confirmed that the Alumni Association had a sound legal basis for their actions. The MBP team wrote an amicus brief and numerous other filings, adding to the Court's records a vast factual and legal history that had been lost over time.

This information provided a larger context for the Office of the Attorney General of Pennsylvania (OAG) as well as the Orphan's Court to evaluate the Board's activities and true aims. It also raised the profile of the proceedings, attracting the attention of The Wall Street Journal which on August 12, 1999 ran a frontpage article on the dispute.

In a surprising turnabout, the Attorney General opposed the cy pres petition, embracing the arguments forwarded by the MBP team. The OAG then took the added step of stating that the legal theory employed by the Board of Managers in 1963 when it directed $50 million to fund the Penn State medical center was not applicable to the MHS Trust.

On Tuesday, December 7th, the Senior Judge of the Court of Common Pleas, Orphans Court Division, denied each of the Board of Managers' requests opposed by the Alumni Association. "The vision of Milton and Catherine Hershey was to relieve poor children from all of the conditions of poverty," the Judge wrote in his ruling. "The proposed Institute does not approximate the Hersheys' express intention for the Milton Hershey School and would do violence to it. Any discretion of the Board of Managers is servient to the dominant intent of the Hersheys to care for as many children as the income will permit."

"The winners here are the disadvantaged children who will get a chance to lift themselves out of poverty," concluded MBP's Scott McCue. "That is what pro bono work is all about."

What would Milton S. Hershey have thought of the pro bono efforts of John Halbleib and MBP on behalf of the Milton Hershey School?

We'll never know, but the following note forwarded to MBP and John Halbleib by Graham W. McIntyre, President of the Milton Hershey School Alumni Association (MHSAA), may offer a hint. It was penned by William E.C. Dearden, former President, CEO, and Chairman of Hershey Foods Corporation, Alumnus of the Year in 1964, and former Chairman of the Board of Directors of the Hershey Trust Company.

Mr. McIntrye writes, "In this simple but elegant note, Bill Dearden, a man who knew Milton S. Hershey, captures the inti-mate nature of the continuing relation between Mr. Hershey and his children — the Alumni."

What is it like to take on a pro bono criminal case with Marc Kadish? We recently explored this question with Karen Prena, an environmental associate, who asked to work with Marc on several matters when he started at the firm.

K.P: Within a few days of Marc's arrival at the firm, we handled what eventually turned out to be a simple criminal traffic matter in Markham. Marc helped me negotiate with the States Attorney and then I handled the matter in Court. On June 17th, Marc and I handled a civil forfeiture case that stemmed from the seizure of a different client's car after a small amount of drugs had been found in his pocket. Again, I did all the talking before the Judge. Now we are working on an Aggravated Battery case which is set for trial on November 30th. We are also working on a murder case which is probably a year from trial.

K.P: Absolutely. The experience has been enlightening and eye opening. I had never been involved with the criminal justice system before. I had never even thought about doing legal work in this area. Visiting our client in the murder case in jail had a strong effect on me. Interviewing his family and looking for witnesses on the street also had an impact on me. I'm not sure how I'll react when the murder case is concluded. I never thought I would be able to maintain "emotional neutrality," but I have become more involved than I thought I would. The whole experience is making me think about the criminal justice system and my work as a lawyer.

K.P: The skills I'm learning by doing pro bono work are directly transferable to the litigation I am working on right now. I am appearing before judges, writing and arguing motions, engaging in case planning and strategy and preparing witness testimony for trials. These experiences make me more valuable to my practice area.

K.P: Without Marc Kadish's presence, it would be. However, since Marc spends all his time on pro bono matters and training, it is not. That is why the other half of his title is so unusual for a law firm. As the Director of Clinical Legal Education for the firm, he operates the same way as any other good clinical law professor. We do the work together. I learn by working with him on individual cases.

K.P: Yes. Mark Ter Molen, a partner in my practice area (the environmental group) represented Verneal Jimerson in the now famous "Ford Heights Four" case. Given Mark's accomplishments in that case, our group recognizes the importance of doing pro bono work. Mark encouraged me and others in our group to work with Marc Kadish. Rich Bulger and Kevin Desharnais worked with Marc on a very controversial matter in September. The three of them worked on this trial for a week and are now working on the appeal.

K.P: No. So far it has not been a problem. First of all you have to remember that the firm supports the work. Pro bono time is fully creditable. You don't have to squeeze it in between 6:00 and 10:00 p.m. Secondly, when you work with Marc you select projects which fit into your schedule. The traffic matter took a total of two hours. The forfeiture case involved a total of less than ten hours' work. The aggravated battery case and the murder case are taking far more work. But given the way criminal cases are done in Cook County, the work is spread out over a longer period of time. I will be able to work these into my regular work. Finally, Marc's availability and experience cuts down your learning curve. His mentoring bridges the gap so you can accomplish more at a faster rate.

This is the first issue of a revamped Pro Bono Update. It will be produced quarterly and will report on the increased activity of our pro bono practice. Frankly, it is intended to recruit as much as report: I believe that by reporting on the interesting work we are doing in the practice, we will inevitably attract more lawyers. This means attracting more people within the firm to do pro bono work. It also means attracting people to become members of the firm because of our program. Nearly every piece in this issue dwells on some MBP person's reaction to the experience of handling his or her first criminal case, going before a judge, visiting a client in prison, or developing a defense by pounding the pavement. However, this issue also demonstrates that our program is not limited to criminal cases. In the next issue, we hope to explore the myriad ways in which we provide assistance to ProvidenceSt. Mel, a private AfricanAmerican school on Chicago's West side.

Whipping up enthusiasm for pro bono work is a primary part of my job description. As many of you know already, I joined Mayer, Brown & Platt last June as our first fulltime Pro Bono Director and Director of Clinical Legal Education. My predecessor, Tom Durkin, served ably in managing our work. What the firm now wants is the added capability of a former clinical teacher to mentor and develop our junior associates in particular. I'm here to teach lawyers as much as to represent clients. I was a Clinical Professor for twenty years. I've taught courses in Evidence Criminal Law, Lawyering Skills, and even death penalty seminars. I've practiced criminal law for thirty years. Few areas of the law allow the practical training opportunities that pro bono work does. I'm persuaded that pro bono work is as much of an opportunity for our lawyers as it is for those whose cases we take on. I think you'll find our stories interesting — and might even be inspired to become a part of them. Marc Kadish

Dennis Mitchell is the premier United States Olympic hopeful in the 100 meters track and field event. A former bronze, silver, and gold medalist and national champion, Mitchell's intensive training was interrupted when a drug test detected sharply elevated testosterone levels in his system. The International Amateur Athletic Federation (IAAF) banned Mitchell from competition, even though USA Track & Field, Inc. (USATF), the national governing body for track and field, had exonerated him.

At USATF's request, Mayer, Brown & Platt undertook pro bono representation of the national body at a July 1999 hearing before the IAAF at its headquarters in Monaco. We sought to reinstate Mitchell in time for competition in the 2000 Olympic Games, and to uphold the integrity of USATF's testing systems and procedures. However, no national federation had ever won a case involving drugs that the IAAF opposed. It was the IAAF's first brush with American rules of evidence; many questioned whether the Swedish, German, and Singapore arbitrators or the London opposing counsel would be receptive to the American approach of dealing with scientific and expert evidence.

The Isotope Ratio Mass Spectrometry Test was supposed to determine conclusively whether testosterone found in urine samples was synthetic or produced by the body. However, MBP attorneys Bradley J. Andreozzi, Walter M. Rogers and Erich G. Rhynhart discredited the test results, convincing the IAAF hearing panel that the test was still "in an infancy stage...based upon an insufficiently developed body of scientific tests and protocols."

The team's evidence and reasoning put Mitchell back in the running in time for the upcoming Olympic preliminaries, while preserving the USATF's drug enforcement reputation. USATF has in turn asked MBP to handle future Olympic law cases. The three MBP attorneys expressed their gratitude to the Firm, which "allowed them the opportunity and the financial resources to take on the highprofile, international, pro bono litigation."

Abdur-Raheem Jehan is serving 25 years to life in prison for an incident that occurred 23 years ago. He was convicted of entering a Brooklyn drinking establishment with two other men in 1976, robbing the bar, then shooting the bar's coowner. In 1996, Abdur-Raheem filed a habeas corpus petition to overturn his conviction. During his first trial in 1977, the State produced only two pieces of evidence tying Abdur-Raheem to the crime. The first was testimony by two witnesses who viewed a lineup three weeks after the shooting and identified him as the gunman. The second was testimony by a detective claiming that Abdur-Raheem confessed to the crime during a jailhouse interrogation. The state appellate court threw out the confession (because Abdur-Raheem's attorney was not present at the time of the interrogation) and ordered a new trial. The jury then convicted Abdur-Raheem again, this time relying solely on the testimony of the two witnesses who identified Abdur-Raheem as the gunman. New York associate Norman Williams, who is handling the case, argues that the second conviction should be thrown out and a new trial ordered because the witnesses' identification of Abdur-Raheem as the gunman was not reliable. Williams contends that witnesses to the shooting had selected Abdur-Raheem from a lineup because he was wearing a jacket similar to that of the gunman, not because they truly recalled that he was the shooter. Williams points out that not only had the two witnesses previously identified another man as the shooter (who was in jail at the time of the shooting), other witnesses at the bar did not identify Abdur-Raheem as the gunman at all. The district court will issue its decision in the next few weeks, and no matter which side wins, there will be an appeal to the U.S. Court of Appeals for the Second Circuit early next Spring. Williams inherited this matter at a stage where a large amount of work had already been done by an associate no longer with the firm; however the habeas corpus petition was completely his own work and something he'd never done before. Said Williams, "Although most of my work involves civil litigation, working on this pro bono case has been an invaluable experience." When asked if pro bono was much like what he expected, Williams replied, "I knew that it would be exciting, but I have especially enjoyed learning about habeas corpus and criminal procedure." He added, "The experience that I have gained in this case will no doubt prove useful in the future."

At an MBP social event, Marc Kadish was introduced to John Touhy, a commercial trial lawyer and partner. Touhy mentioned that he'd be interested in going to trial with Kadish on a pro bono case if Kadish needed any help. That was all Kadish needed to hear. The next morning, before Touhy's coffee had a chance to cool, Kadish phoned, rattling off the details of a criminal drug case too interesting to refuse.

Our client, 27 year old Tiger O'Neil, seemed likely to lose at trial. Despite a prior felony criminal history, he insisted he was innocent of the charge of possession with intent to deliver cocaine. O'Neil was walking home when the police stopped him. The officers claimed they saw O'Neil drop a bag containing drugs; O'Neil said the police found the drugs hidden in some bushes next to where he was stopped. According to O'Neil and others familiar with the community, the southside Chicago neighborhood was well known for drug trafficking, and drug dealers never carried drugs on their person, instead hiding them in bushes, in trees or behind stoops.

In his favor, O'Neil was working fulltime and had recently won a custody battle for his children, which would help him appear as a more sympathetic defendant to the jury. On the down side, O'Neil could not escape those prior felony convictions, and the police did have a bag of drugs. While they realized that a victory was a long shot, Marc and John went to work to present a favorable picture of O'Neil's story. They took on summer associate and third year University of Chicago Law School student Mariam Farah who, like Touhy, was brought into the pro bono fold without criminal law experience. They engaged the services of a paralegal who would help with the investigation.

Now that the crew was assembled, they began their firsthand research in O'Neil's neighborhood — "field work on the edge," according to Mariam. The team did indeed find a neighborhood full of gang and drug activity. Together, they canvassed doortodoor for witnesses and interviewed neighbors. They photographed the neighborhood and key locations in the case. They even took O'Neil's bus route.

On the morning of the July 13 trial, as they drove to court in Bridgeview, the team was prepared but uncertain. They knew O'Neil's story was a tough sell. The enormous photos and charts they'd produced to support their client's story were almost too big to fit in their car, but they managed to arrive at the 5th District courtroom on time. With their exhibits in place and black notebooks visible to all, the case was called; they answered: "Ready for trial."

The state's attorney asked for a short break. After the break, O'Neil was offered a plea bargain: a plea of guilty and two years in the Department of Corrections. Kadish calculated that, after credit for "good time" and the time already spent in jail awaiting trial, O'Neil would probably spend a total of only three months in prison. In the event that O'Neil was convicted, he would most likely receive a sentence of 8 years.

Ultimately, after discussions with his lawyers, O'Neil felt his wisest course of action was to try to return to his family as quickly as possible, and with the least amount of risk. He decided to take the state's offer. Although Marc, John, and Mariam each felt that they might have won at trial, they agreed that the deal was simply too good to pass up.

John Touhy and Mariam Farah drew differing lessons from the case: John got a look into criminal practice, and Mariam got a glimpse into her own future as a lawyer.

When asked to describe her perspective, Farah remarked, "It provided me with the opportunity to be involved in every aspect of a criminal case, including conducting client interviews, witness interviews, and participating directly in the strategy. I filed a motion in limine which was an excellent project for a newcomer. I alone appeared with Tiger on the day he surrendered to begin service of his sentence. For the first time I got to see the daytoday process that an attorney has to go through in order to prepare for trial. I recommend that other summer associates do pro bono work for the experience and for the cause."