Judicial Notice (07.14.24): ‘Scorching’

Alec Baldwin’s ‘dream team,’ shocking allegations against a (former) federal judge, a juicy suit over law faculty hiring, and Paul Hastings’s latest big-name hire.

Left to right: Alex Spiro, Alec Baldwin, Luke Nikas, and Heather LeBlanc (photo by Ross D. Franklin via Getty Images).

Welcome to Original Jurisdiction, the latest legal publication by me, David Lat. You can learn more about Original Jurisdiction by reading its About page, and you can email me at davidlat@substack.com. This is a reader-supported publication; you can subscribe by clicking here. Thanks!

Welcome to the first edition of Judicial Notice since Independence Day. I hope that you and your families had an excellent Fourth of July. Our family spent it up at our place in the Berkshires, in western Massachusetts—and we were up here again this weekend, although about to return to New Jersey.

Looking ahead, on Thursday, July 18, I’m moderating a webinar about how AI is transforming legal recruiting and hiring. Sponsored by Haistack.ai, the event is free and open to all, and you can register here.

Then on Wednesday, July 24, I’m moderating a panel for the New York City Bar, which will feature three Supreme Court experts—Professor Brian Fitzpatrick of Vanderbilt Law, Sullivan & Cromwell partner Morgan Ratner, and Professor Stephen Vladeck of Georgetown Law—analyzing the latest SCOTUS Term. You can register here.

I’m a legal rather than political commentator, and I try to stay in my legal lane. But given its gravity, I have to acknowledge yesterday’s assassination attempt against Donald Trump at a campaign event in Butler, Pennsylvania. Regardless of your feelings about Trump, we should all be able to agree with President Joe Biden: “There’s no place in America for this type of violence.”

The fact that the Butler shooting even occurred, along with some of the discussion that took place in its wake, unfortunately reflects where we are right now as a country. And even if it’s not legal news per se, it goes to why lawyers and the rule of law are so important: in a nation like ours, marked by a great diversity of viewpoints, we need to be able to resolve our differences without resorting to violence.

Now, on to the legal news—of which there’s a ridiculous amount, since this is a double edition covering two weeks. Don’t be afraid to skim, and apologies if you find my discussions too cursory or if I’ve missed any notable news. Please mention, in the comments to this post, any stories, observations, or arguments I’ve overlooked.

Lawyers of the Week: Luke Nikas, Alex Spiro, John Bash, and Heather LeBlanc.

I didn’t expect Alec Baldwin to get convicted of manslaughter for the tragic death of cinematographer Halyna Hutchins. The criminal case had a lot of holes, and Baldwin had assembled an amazing legal team, featuring Quinn Emanuel partners Luke Nikas, Alex Spiro, and John Bash, plus Heather LeBlanc as local counsel. But I expected an acquittal after brief deliberations; I did not expect the case to implode, mid-trial, in spectacular fashion.

But implode is exactly what happened. On Friday, during the third day of Baldwin’s trial in New Mexico’s First Judicial District Court, Judge Mary Marlowe Sommer dismissed the case with prejudice—or in Judge Sommer’s words, “scorching prejudice”—meaning that the case cannot be refiled.

[UPDATE (7/16/2024, 8:45 a.m.): A reader pointed out to me that if you watch the video (around 7:36:26), it appears that the judge wasn’t saying “scorching prejudice,” but instead said “scorching,” end of sentence, followed by “prejudice” as the heading of the next section of her ruling. But numerous outlets—including The Times, The Washington Post, ABC, and MSNBC—reported it as “scorching prejudice,” as if that were a technical legal term or term of art. I’m guessing that this error came from the transcript. For what it’s worth, I’ve changed the subtitle of this post from “Scorching Prejudice” to simply “Scorching”—and also added the word “scorching” to my sign-off in the very last sentence, referring to the brutally hot weather we’re having.]

The facts are messy, but the CliffsNotes version is that the prosecution mishandled critical ammunition evidence. After holding a hearing featuring testimony from prosecutor Kari Morrissey, who was subjected to a withering cross-examination by Spiro, Judge Sommer concluded that the prosecution’s “willful withholding of this information was intentional and deliberate”—and that there’s “no way for the court to right this wrong.”

While the case was ultimately dismissed because of the government’s screw-up, Baldwin’s lawyers deserve a lot of credit for the win. Most obviously, they unearthed this evidentiary issue—through their questioning of an early witness, a crime-scene technician—and pursued it to its logical end. It all culminated in a dramatic, in-court examination of the ammo, straight out of Perry Mason.

But beyond that, Team Baldwin doggedly called out the prosecution’s missteps at every turn. Last year, his legal team got the charges downgraded because Baldwin was improperly hit with a firearm enhancement based on a law that wasn’t passed until after the shooting—oops. This year, in the weeks leading up to the trial, they moved to dismiss the case based on defects in the grand jury proceedings, the legal theory of the case, and FBI testing that broke parts of the gun—double oops.

Judge Sommer rejected these arguments, and the case went to trial. But thanks to the narrative of prosecutorial bad faith that the Quinn Emanuel lawyers carefully crafted over a period of many months, I’m guessing that the judge went into trial with greater skepticism toward the government’s case. So when this problem with the ammunition evidence arose, Judge Sommer was primed to come down on the prosecution, hard—and that’s exactly what she did.

The dismissal came as a great relief to Alec Baldwin, who wept and hugged his lawyers in court, but it doesn’t mark the end of his legal troubles. While the criminal case seemed dodgy, the matter seemed eminently appropriate for civil litigation—which Hutchins’s widower, former Latham & Watkins associate Matthew Hutchins, continues to pursue. Although Baldwin and Hutchins reached a settlement in October 2022, Hutchins has not yet been paid, so he has not yet dismissed his wrongful-death suit. Stay tuned.

Other lawyers in the news:

• Rudy Giuliani had a bad two weeks: first he got disbarred in New York, and then his bankruptcy case got dismissed—which means that his creditors, including two Georgia election workers who secured a $148 million defamation judgment against him, can now pursue and possibly seize his assets.

• Those election workers, Ruby Freeman and Shaye Moss, are represented by Michael Gottlieb of Willkie Farr—who along with Igor Timofeyev of Paul Hastings was named Litigator of the Week by Am Law Litigation Daily. The duo won a Second Circuit victory in a complex case over the validity of nearly $2 billion in bonds issued by Venezuela’s national oil company.

• Sullivan & Cromwell partner Brian Glueckstein has billed more than 4,000 hours in the bankruptcy case of the FTX cryptocurrency exchange—which, at his current hourly rate of $2,375, amounts to $9.5 million. According to Reuters, it also works out to “billing close to 11 hours a day on a single case, five days a week, for 18 months straight.” Living the Biglaw dream?

• For those of you who have been following the sad and sordid saga of former Greenberg Traurig partner Allan Kassenoff and his late ex-wife, former assistant U.S. attorney Catherine Youssef—who went through brutal divorce proceedings, with devastating consequences for their three daughters—read Francesca Block’s Free Press piece, a deep dive into the drama.

In memoriam:

• Martin Stolar, a prominent civil-rights lawyer known for working on progressive cases and causes, passed away at 81, from heart failure.

• Abe Krash—a longtime partner at Arnold & Porter and litigator in Gideon v. Wainwright, in which the Supreme Court held that the Sixth Amendment guarantees the right to counsel to indigent defendants—passed away at 97.

May they rest in peace.

Judges of the Week: Chief Justice John Roberts and Judge Joshua Kindred.

Because this installment of Judicial Notice covers two weeks, I’m taking the liberty of naming two Judges of the Week—although one of them is now a former judge.

First up is Chief Justice John Roberts. As this Term drew to a close, he “showed himself firmly in charge” at the Supreme Court and “led the Court’s conservatives to curb federal power,” per Jess Bravin of The Wall Street Journal. For a closer look at the power of Chief Justice Roberts—exercised through his vote, his authorship of landmark opinions, and his leadership behind the scenes—I refer you to my Boston Globe piece, “It’s John Roberts’s Supreme Court After All.”

Second, let’s talk about Joshua Kindred, who was appointed by President Trump in 2019 to the U.S. District Court for the District of Alaska. Kindred abruptly resigned from the court, triggering lots of speculation over why—much of which was confirmed when the Judicial Council of the Ninth Circuit made public a 30-page order describing the results of a lengthy investigation into allegations of judicial misconduct.