Apparently the Justice Department is none-to-pleased with the way the constitutional challenge to Don’t Ask, Don’t Tell in the Log Cabin Republican v USA case is going. Sure, President Obama advocated for repeal of DADT and Attorney General Eric Holder attended the joyous repeal bill signing ceremony – second row, right behind Palm Center Director Aaron Belkin and in front of longtime DADT foe David Mixner – but that doesn’t mean the DOJ legal team, lead at trial by original attorney Paul Freeborne who has been fighting Dan Woods and his legal eagles from White & Case since 2004, is happy about or even resigned to changing strategy or – gasp – losing.
In fact, the DOJ is looking like an obsessed spurned lover who just can’t let go. Consider this little tidbit: it is customary for the winning attorney in a pro bono case to try to recover court costs – for which Woods petitioned after Riverside District Court Judge Virginia Phillips ruled that DADT is unconstitutional. A court clerk awarded Woods just over $20,000 after the government challenged about $5,000 of the total $25,000 to which Woods is entitled.
But Freeborne let Woods know last week that the DOJ will be filing a motion to challenge $1,000 to $2,000 of that $5,000 award. Ouch!
I attended that District Court trial in Riverside and given the attitude on display in the courtroom, I’m not really surprised by the DOJ trying to nickel and dime Woods and LCR.
That’s what the courtroom looked like: David versus Goliath. On one side sat Woods and a co-counsel, with a few young Case & White attorney’s sitting with the trial observers. By contrast, Freeborne had about six people sitting at the two DOJ tables – including one person to work (not so well, originally) the Power Point presentation. The DOJ’s “client,” JAG Major Patrick Grant, spent the morning of opening arguments passing notes and chewing gum, which is explicitly prohibited in court. Behind them sat three women assistants, babysitting a rack filled with huge binders. That’s in addition to the boxes and boxes stacked to the side.
I reported at the time that LCR expert witness Nathaniel Frank was considerably gracious about the rude way in
which the DOJ tried to belittle him.
“[I]t’s no surprise that they’re frustrated and getting personal. They have no expert witnesses of their own, and no data whatsoever to back up their arguments, since none exists, so they’re objecting to the introduction of facts at every turn. While it’s normal in any court case for the parties to try to dismiss witnesses, evidence, and the entire case, the government made an extraordinary and unusual effort in this case to ensure that facts were never heard. If I were in their position, lacking any facts on their side, I might try the same thing.
I will say, however, that the DOJ has gone farther than it needs to to mount a robust defense, arguing, for instance, that telling the Court the truth about the homophobic basis behind DADT “does a discredit to our democracy.” It is also disappointing to see the Obama Justice Department disparaging gay experts by patronizing their years of efforts to inform the public of the costs of DADT–this is the very information that’s now the foundation of the administration’s position opposing the policy. There are ways to object to testimony without denigrating the witnesses, and the DOJ has overstepped in getting personal.”
I was more angry:
“I don’t think the DOJ attorneys are frustrated; I think they’re flippant frat-boy style lawyers trying to make their bones with this case….
Freeborne was almost sneering in his presentation, saying of Frank, “We don’t believe that the methodology that Dr. Frank has employed is recognized in any field. I know he said qualitative research. It’s nothing but his opinion.” He challenged Frank’s expertise on unit cohesion, foreign militaries, costs, and then said:
“The rest of it is sort of an exercise in reading comprehension. He has read a lot of things, undoubtedly, and spouted out his opinion about them; but that’s hardly a methodology that the Court should accept in designating an expert.”
Interestingly, Judge Phillips came to Frank’s defense, noting that he did have some peer-reviewed articles, and besides she was allowing a broader understanding of “expert.”
But Freeborne persisted:
“In a nutshell, what I’m suggesting is, again, while an heartfelt advocate, he’s hardly an expert. He has interviewed a lot of people. He has read the legislative history and plucked out statements that benefit his position. But that’s hardly a methodology. His specialty is in opinion pieces.”
Woods remained fairly cool while Freeborne basically did deep knee-bends at this desk. Finally, the court had enough, too, saying after one objection too many:
“Well, if this were a jury trial, I would only once instruct the jury that they would consider this — I would only once give a limiting instruction to the jury.
So frankly, to stand up and make that objection every time when it’s a court trial, I’m really puzzled that you’re doing that, because it’s not my first trial, and I’m really aware of the distinction between what an expert relies on and the purpose for which he can testify about it.
So your objection’s noted. If you want to do it every time, you may, but it’s really not necessary.”
Given Freeborne’s rudeness to the judge whom he presumably would hope to have rule in his favor – it’s not all that surprising that he would try to deny Woods anything to which the principled attorney was entitled.
Dan Woods explained the court costs situation thusly:
“Here is the situation regarding court costs. There are two aspects to this.
First, after Judge Phillips entered judgment for Log Cabin, we filed a routine memorandum of costs, seeking to recover the court costs to which we were legally entitled, for items like court filing fees, deposition costs, and the like. The total we sought was about $25,000. Typically, the government nitpicked the items and challenged about $5,000 of our claim. A court clerk sorted this out and awarded us slightly over $20,000, agreeing with some but not all of the government’s points. Paul Freeborne told us in an email this week that the government plans to file a motion about this (called a motion to retax costs). By that motion, the government will be challenging $1-2,000 of the costs the court clerk awarded Log Cabin. Yes, a government motion for $1-2,000!
Second, when the case is finally concluded, Log Cabin is entitled to file a motion to recover attorneys’ fees under a federal law called the Equal Access to Justice Act. That law caps the hourly rate we could claim at about $170 per hour, far less than our firm’s usual rates, but the amount we might claim down the road would be well into seven figures.
But do I really think the US government’s position in this case is driven by money concerns? No. The government simply continues to be twisted into knots about how to handle our case, our victory, and its aftermath.”