Excellence in the Law celebration saluting Lawyers of the Year — see page 11

JONATHAN M.ALBANO Boston

Ifyou buy ink by the barrel, you probablyknow JonathanM.Albano.BinghamMc-Cutchen’s FirstAmendment specialistrepresents newspapers across New Eng-land— as well as The NewYork Times

and TheWashington Post— in libel disputesand in efforts to gain access to information.And he can take personal credit for at least one

Pulitzer Prize, journalism’smost coveted award. In2001,he convinced Superior Court JudgeCon-stanceM.Sweeney to unseal court records in cler-gy-abuse cases,which led to a prize-winning“Spotlight”series in The BostonGlobe.Celebrities looking to enforce their constitu-

tional legal rights have also turned toAlbano.Thisyear,he defended filmmaker-firebrandMichaelMoore against a disabled veteran’s defamationclaimon appeal,and he representedYokoOno ina copyright dispute over archival footage of herand her late husband, the Beatles’ John Lennon.Past clients have also included pop starMadonnaand artist Christopher Buchel.Despite his brushes with fame,Albano is res-

olutely humble about his work.He insists that hehas labored overmore commercial litigation casesthan he has high-profile FirstAmendment issuesand that he still cribs phrases from the briefs of hismentors. As for representingMadonna,he says hedoesn’t do anything differently for her than hedoes for a client in a small-claims case.“It’s not like you care more about those cases

than you care about your other cases,”he says.“In all of the cases, you are working with the

client who cares deeply about what happens.And in all of the cases, you care about yourcredibility as a lawyer.You want people to beable to trust what you say if you’re talking abouta rule of law or facts in the case.”

Q. You defended Michael Moore in a suit broughtby a sergeant in the Reserves whose news clip ap-peared in the film“Fahrenheit 9/11”without hisconsent.How did you prevail in that case?

A. The plaintiff ’s theory was that, by being in-serted into the movie, he was falsely alignedwithMichael Moore’s anti-war views.Wemadetwo arguments.We said that it’s not a fair takeon themovie to say that simply becauseMr.Da-mon [the plaintiff] was in it, he was portrayed asbeing supportive of Michael Moore.The otherargument wemade was that it shouldn’t be con-sidered defamatory to be called either pro-waror anti-war.That argument was reminiscent ofthe one wemade of theMadonna case.There,the plaintiff said that he was falsely portrayed asbeing homosexual.The 1st Circuit in both caseswent with the most limited rationale, that it justwasn’t a reasonable conclusion to draw that themovie in one case and the book in the otherportrayed the plaintiff in that particular light.

Q.You’vehadanumberof big cases over the years.Whichonedoyou consider to be yourmost important?

A. I’d have to say that the work that was objectivelythemost significant would be helping the [Globe]

Spotlight Team unseal records of theBostonDiocese.That’s a case whereif the paper wasn’t interested in pur-suing it, and if we didn’t get judgeswhowere receptive, that informa-tion would never have come to light.Lawyers tend to take credit forthings, and if we lose,we blame thejudges.But really and truly, it wasthe court that opened up thoserecords.

Q.Howdid you get involved in FirstAmendment law?

A.There’s a long tradition at Bing-hamof doing this kind of work.When Iwent to Bingham,I thought,“Maybe if I get one case among 10,that would be great.”So Iworked for[James F.]McHugh for a few yearsand got a few cases,and he thenwent on the bench,and SusanGarshbasically took Jim’s spot,and I

worked for her for several years,and then shewenton the bench,and then theywere sort of stuckwithme.They are two great FirstAmendment lawyers. Ilearned a lot from then,and I still— this is God’shonest truth—have briefs that theywrote that Istill steal lines from.

Q.You represent a lot of high-profile clients.What is that like?

A.You actually prepare the cases exactly thesame way.There really is no difference betweenworking on those cases and working on anyother case.You want to do your best in all ofthem, and you try to bring the same effort andattention to detail to all of the cases.

Q. But those high-profile cases comewith intensemedia scrutiny.Howdo you handle that as a lawyer?

A.The only really worrisome thing is that Imightsay something that sounds stupid. I hate readingtranscripts of my arguments, too. I think:“That’s nota real sentence; I sound like Sarah Palin.”It’s an op-portunity to say something dumb.But the answercan’t be that lawyers don’t talk to the press,becausein criminal cases and cases of significance to howgovernment operates, it’s essential for lawyers to beable to talk to the press so that people knowwhat’sgoing on, to have a sense of fairness and a sense thatthe system isworking fairly.Without that,peoplewould become incredibly distrustful.

Q.What’s it like being a FirstAmendment lawyer ata timewhen newspapers are in financial trouble?

A.Of course, it doesn’t change at allmy interest orwhat I believe is the significanceof the area of law.Butit does give youkindof a front-row seat in seeinghowthe economics have truly changed the ability of thepress todo someof the things theyused tobe able todowhen thereweremore economic resources.Things like pursuing thepublic’s right of access tocertainmaterials is, in tough economic times,muchmoredifficult for newsorganizations todo.And sothey really have tomake very toughdecisions aboutwhere todevote their resources.In caseswherepapersare self-insured,the costs of a libel case actually trans-late into,at the endof the year,a certainnumberof re-porter spots that canno longer be afforded.

Q. What will your role look like in newspapers’post-crisis incarnation?

A. I’m tempted to say thatwe’re about to see,over thenext fewyears,all kinds of changes in every industrybecause of the economic crisis.And lawyers are goingtohave to adjust to that in every situation,to figure outhow tomore efficiently help our clients,how todo itbetter,meaner, leaner—that’s the cliché.And I thinkthoseprinciples have to apply to the lawyerwho rep-resents thepress aswell.I don’tmean to imply that it’sall altruistic.If youdon’t efficiently handle a case,youdon’t get anybody comingback to you.On theotherhand,if you efficiently handle a case andare sensitiveto a client’s needs,yougetmorework.

— JULIA REISCHELjulia.reischel@lawyersweekly.com

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Age: 51

Education: Boston CollegeLaw School (1982); BostonCollege (1979)

Bar admission: 1982

Professional experience:Partner, Bingham McCutchen, Boston(1982-present)

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Jonathan Albano on ...His most memorable moment at law school:“My first year at BCLaw, my property professor was Mary Ann Glendon. I got calledon in property class, and I was supposed to state the facts of thecase, an old propertytrespass case from the 1600s. I described theparties whohad trespassed as ‘duck hunters.’ A year later, I walkedby her office in the hall and I said hello. As I went past her, I heardher say, ‘We did the duck hunters in class today.’”

Highlight of his legal career:“Helping The Boston Globe Spot-light Team unseal court records of the Boston Diocese”

One thing about him that might surprise other people:“Mostof the cases I’ve worked on in my career are commercial cases.I’m quite sure that if I added them all up, there’s more commer-cial litigation than constitutional litigation.”

Favorite book or film: “To Kill a Mockingbird”

What has kept him in the practice of law:“A combination of thecases I’ve worked on and the people who I’ve worked with and for”

JANICE BASSIL Boston

Youmustdothe thingyouthinkyoucannotdo,”EleanorRooseveltoncesaid.ThatquoteandacopyofDorotheaLange’s famousblack-and-white por-trait of acare-wornmigrantmother

line thewallsof JaniceBassil’s lawoffice.They re-mindherof thesummer that shewas14yearsoldandread“ToKill aMockingbird,”“NativeSon”and“TheGrapesofWrath”andsuddenlywas fullof ide-alismaboutcriminaldefense.“That’s when I decided I wanted to be a de-

fense lawyer,” she says.“People talked aboutthings like justice back then.”Since that summer,Bassil has built an impres-

sive criminal defense practice and developed aspecialty in family law, all while dealing withtwo bouts of breast cancer, fromwhich she hasbeen in remission for nearly 10 years.Togetherwith her law partner, J.W.Carney Jr.,

in 1996 Bassil defended convicted abortion-clinickiller John Salvi using the insanity defense.In 2007,Bassil made headlines again when

she convinced a jury that Richard Sharpe, a for-mer dermatologist convicted of murdering hiswife, had not plotted to kill the assistant districtattorney who helped put him away.And that same year, she won an acquittal for

Curtis Jiles, a convict with a record who shemaintains was falsely accused of a murder inDorchester.Her most recent acquittal came last January,

when Bassil successfully convinced two juries intwo separate trials that fellow criminal defenselawyer and former People magazine“EligibleBachelor”Gary Zerola was not guilty of sexuallyassaulting two women.“I’ve been on this slight roll for a while,” is

how Bassil characterizes her string of defenseverdicts.“It’s a slight roll,which I’m sure will endat anymoment.”

Q. In taking on the Zerola case,whywould youwantto defend someonewho had been accused of sexuallyassaulting women on three separate occasions?

A. I took the case because I thought it was anenormous challenge and because I really thought Icould do it. I thought hewould be better off with awoman lawyer,and an older lawyerwho couldbalance the hardcore legal research andwritingwith ameasured trial presence.

Q.Whydid being awoman give you an advantage?

A.When I started out, thereweren’t anywomenlawyers,especially in sexual assault cases.But Idon’t think amale lawyerwould be able to standup and hold a tiny, lacey see-through thong beforea jury and not look like a pervert.As awoman,you have the ability to communicate,without real-ly saying it, that there’s a responsibility here,andyou [the female complainingwitness] bear someresponsibility forwhat you’ve done.

Q.What was your strategy in the case?

A. First of all, it was a team effort.Hank Bren-nan, a lawyer here,worked hard on the case withme.And [Superior Court Judge Regina L.Quin-lan] was amazing. She was so determined thathe was going to get a fair trial.One of the first stepswas amotion to sever the

two cases.Therewas one in 2004 and one in 2006,and theywereweaker apart than theywere to-gether. I worked incredibly hard on thatmotion tosever. I didn’t think that I couldwin those cases iftheyweren’t separated.Theway that they joinedthemwas to show that it was a pattern of conduct,and the originalmotion to sever occurred thenight after [Zerola] was arrested on allegations ofanother sexual assault, in Florida.The district at-torney filed the Florida information in away that Ifelt really was an attempt to influence the judge.

Q.Whatwere some key pieces of evidence that youused to turn the case yourway?

A. In one of the cases, I got per-mission from the court to gointo the apartment where therape allegedly took place with asound crew and did soundchecks to determine whether theparty guests in the living roomwould have heard anything [if arape had taken place in the bed-room, as alleged].In the first case, there was a

911 tape that was a bit of a chal-lenge. It was of the complainingwitness saying,“Gary,what areyou doing?” It was very short,about 20 seconds.You don’t hearher yelling,“Help!”Gary testi-fied, and he said what happenedwas that she came to his apart-ment to use the bathroom, andshe wanted a ride home, and he

told her to leave immediately and began push-ing her out the door.And that was what the 911call was about.

Q.What was it like to defend another criminaldefense lawyer?

A.He’s a lawyer; he’s one of us. I knew him a lit-tle bit — not well. But it’s a small bar.He was ob-viously more well-informed thanmost clients,and there was a lot more collaboration with himthan there is with most clients.

Q. Your defense of Zerola has been described as“gutsy” because you made it clear to the jury thatyour client wasn’t an angel himself.

A.Did he behave in the bestmanner possible?Ofcourse not.Butwhat amazedmewas thewholenightclub scene.This wholemilieu—my clientwasa part of it.You’ve got to be honest with the jury,and the fact wasGarywas there; hewas a part ofthat culture that night,and it was one of those badnights with people not behavingwell.We have thissaying in the office:“Embrace the thing that hurtsyou themost.”You can’t run away from it,but youcan explain it.A lot of people thought that the 911tapewas particularly damaging to our case,but youreally have to takewhat the government has and ei-ther turn it to your advantage or discount it. I’ve al-ways felt that if a prosecutor is chasingmy closingargument in his closing argument, then I’m in pret-ty good shape.

— JULIA REISCHELjulia.reischel@lawyersweekly.com

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Age: 54

Education: Boston Universi-ty School of Law (1978);Brandeis College (1975)

Bar admission: 1978

Professional experience:Carney & Bassil, Boston(1989-present); White, Inker &Aronson, Boston (1986-1989);Massachusetts DefendersCommittee (1978-1986)

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Janice Bassil on ...Her most memorable moment at law school: “For the firsttwo months of law school, I couldn’t understand what peoplewere saying. Itwas almost like they were speakingPortuguese.”

Highlight of her legal career: “I’ve had a series of trials thathave been not guilty, since the [Richard] Sharpe case.”

One thing about her that might surprise other people: “I’mvery good with my hands— I find crafts soothing. Once, I was ata conference, and I was doing needlepoint, and a lawyer cameup to me and said, ‘You, of all people, are doing needlework?’ Ipassed him back a note saying, ‘Why should you define me?’”

Favorite book or film: “‘Moonstruck.’ Yes, the one with Cher. Ilike it because it’s over the top.”

What has kept her in the practice of law:“The older I get, andthe more comfortable I get in my own skin, the better I get in frontof juries. I’ve found myself more and more just talking to jurors.It’s part skill, part experience, and it’s a continual work in progress.”

“

CLAUDIA L. BOLGEN WoburnMARGARET C.WINCHESTER Worcester

Inits ruling in In the Matter of Hilary is-sued earlier this year, the Supreme Judi-cial Court did something it rarely does:expand the right to counsel.The SJC found that parents of children

involved in child-in-need-of-services— orCHINS— proceedings have the right to counselin cases where the child’s custody is at stake.CHINS cases typically involve children who

have run away, failed to attend school or hadother disciplinary issues.Justice Roderick L. Ireland,writing for the

court, said the statute in question provides that“if the child is subject to a permanency plan,both the parent and child are entitled to counseland, if either the parent or child is indigent,counsel will be appointed.”The prevailing attorneys inHilarywere

Woburn appellate lawyer Claudia L.Bolgen andMargaret C.Winchester of the Committee forPublic Counsel Services’Children and FamilyLaw Program inWorcester.When told that they had been selected as

Lawyers of theYear, the pair said they were mostpleased by the fact that their success in the casewould highlight the efforts of family law attor-neys across the state who work on care-and-protection and custody issues.Typically, says Bolgen, such cases are im-

pounded.“That’s something that keeps this areaof the law under wraps with regard to the rest ofthe legal profession. It’s great to show the rest ofthe legal profession what we do.”Since the cases often involve heartbreaking

fact patterns,Winchester likens their victory inHilary to years of “banging your head againstthe wall, and then one day the wall finallyopens.”

Q.Had you been looking for a test case for this issue?

A. BOLGEN: This has been an issue for a longtime.People had been wondering how theCHINS statute could be on the books for yearsand this issue had never been raised.This actu-ally started withmy client saying,‘It’s not fairthat you can take my child away, and I don’thave a lawyer.’ She buttonholed [Lawrence attor-ney Pedro R.Lara] in the lobby and asked himto request to be appointed her lawyer.WINCHESTER:Our case came up different-

ly. Our client was involved in a care-and-protec-tionmatter.When she ran away, the Departmentof Children and Families filed a CHINS peti-tion. The court dismissed the care and protec-tion and went forward on the CHINS petition togive the department custody.We were involvedin the care and protection. It meant that nowthey were going to remove the custody but thatthe mother had no counsel, so we petitioned tobe appointed counsel on the CHINS case.

Q.How did the two cases become consolidated?

A.WINCHESTER:When thematter came up here,I called our Boston office to talk about this,and thehead of our appellate unit,AndyCohen,mentionedtherewas a case, so I calledClaudia.Weweren’t un-known to each other!We should alsomentionDawnM.Messer,who represented themother,andMichael F.Kilkelly [who represented the child]—they bothworked veryhard on thiscase.BOLGEN:

Our casemooted out.That’s the na-

ture of CHINS.Becausewehadmade the decision toconsolidate [the cases],wewere able to avoidmootingout a really important issue.

Q.Did the justices indicateduring oral arguments thatthey might expand the rightto counsel?

A.BOLGEN: Justice Ireland isa specialist in juvenile law.Hehad remained relatively silentthrough our portion of the ar-gument. But at one time dur-ing the attorney general’s ar-gument, he leaned back in hischair and said that if hewas aparentwhose kidwas beingtaken away,he’dwant counsel.At that point,Margaret and Ilooked at each other and said,“They get it; it’s a question offairness.”WINCHESTER: It was key

that the issue had narrowedas being the right to counselat the removal-of-custodystage. If it had been about aright to counsel when the

case is first filed, I think that the court would havelooked at it very differently.

Q.What has been the impact ofHilary?

A.WINCHESTER:We’re still finding ourway as towhat impact it will have.Some courts are appointingcounselmore regularly than other courts.When itfirst camedown,therewas ameeting inWorcesterwith judges andmuchof the bar talking about theimpact it could have.I’mnot surewe’re seeing asmuch impact aswehadhoped for,but I don’t knowwhat is being done in every county.Usually, thereshould be a determination of indigence,and I’mnotsure that’s happening regularly in these cases. I thinkthere’s an issue that the parentsmaynot knowaboutthis right,and it depends onhow it is presented tothe court.Because it happens at the dispositionalstage,youmight have [already] had a hearingwherethe parentwas told that if theywant counsel, theyhave to pay for it.Wemight not have someone thereto explain to themwhat the process iswhen theycould potentially lose the right to custody.

Q.The expansion of a right to counsel is rare.Arethere lessons from this case that could be appliedelsewhere, or was this a fairly narrow issue?

A. BOLGEN: I think it is specific. If you’re inProbate & Family Court, even in a private con-text, the right to counsel exists. The SJC wascareful to decide this on the statutory interpreta-tion, although in our briefs we had pages andpages on due process grounds, on constitutionalgrounds and on equal protection grounds.WINCHESTER: There are some related legal

issues. For instance, in care and protection,when a child is removed, there is a right to a 72-hour hearing.There may be a similar right [tocounsel] for that hearing, but will the process bethe same? None of us know.

—NOAH SCHAFFERnoah.schaffer@lawyersweekly.com

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BOLGEN

Age: 44

Education: Boston College LawSchool (1990); Dartmouth Col-lege (1986)

Bar admission:1991

Professional experience: Bol-gen & Bolgen, Woburn (1994-present); Ropes & Gray, Boston(1990-1994)

WINCHESTER

Age: 55

Education: Suffolk University LawSchool (1980); University of Massa-chusetts, Amherst (1976); FitchburgState College (1975)

Bar admission:1980

Professional experience:Commit-tee for Public Counsel Services(1999-present); sole practitioner,Fitchburg (1989-1999); corporatecounsel, Bath Iron Works, Bath,Maine (1987-1989); coordinator ofpersonnel services/contract special-ist, Office of the Chief AdministrativeJustice for the Trial Court (1979-1987) PH

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Claudia Bolgen on ...Her most memorable moment at law school:“Getting on the law review”

Highlight of her legal career:“Winning this case”

One thing about her that might surprise other people: “I’m anenormous Celtics fan.”

Favorite book or film: “‘Animal, Vegetable, Miracle’by Barbara Kingsolver”

What has kept her in the practice of law: “This is the most fun jobI’ve ever had. I’m always learning something new.”

Margaret Winchester on ...Her most memorable moment at law school:“Finishing, because Iwas working full time and going to school full time”

Highlight of her legal career:“Doing care-and-protection work”

One thing about her that might surprise other people: “I like toballroom dance.”

What has kept her in the practice of law:“I love doing what I do: help-ing children and parents who are involved with the child welfare system.The Hilary case is a prime example of why I continue to do this work.”

BOLGEN WINCHESTER

MAX BORTEN Waltham

MaxBorten is that rare breed ofprofessional: a lawyer and aphysician.His medical careerpreceded his legal career, al-though at times the two over-

lapped. Each endeavor is considered a helpingprofession, and it is no quirk of fate that this 61-year-old dual professional found his way tomedicine and the law.Born in Stuttgart,Germany,Borten describes

himself as“a child of the Holocaust.”His parentswere forced to flee their home city when Bortenwas but three months old.With two other sonsin tow, they slipped into France and then board-ed a boat bound for SouthAmerica. Eventually,the family landed inArgentina where Bortenwas raised and educated.InGermany,his father had been a successful phar-

macist“who taught us the only thing people cannottake away fromyouwas your brain,”Borten remem-bers. Taking that lesson to heart, the son immersedhimself inmedicine,specializing in obstetrics andgynecology,and then in the study of law (as a dean’slist student at SuffolkUniversity inBoston).Not sur-prisingly, he is amedical-malpractice attorney.His grasp of the two disciplineswas on display

earlier this yearwhen he argued before theSupreme Judicial Court the case ofMatsuyama v.Birnbaum, inwhich he represented the plaintiff, apatient who had sued a doctor for allegedly failingto properly diagnose stomach cancer, thereby re-ducing the patient’s chance of survival from a bet-ter-than-even chance to one less than even.The physician in the case had argued that

adoption of the loss of chance doctrine wouldresult in a radical change in established law andamount to an impermissible judicial amend-ment to the wrongful death statute. But, in a Julydecision, the SJC disagreed and handed Borten avictory; twomonths later, the court denied thephysician’s petition for rehearing.

Q. How did you get theMatsuyama case?

A.We got the case referred to us by a health-

care provider that knewme as a physician.That’s not unusual in my case [as a physician].

Q. What did you think your chances were whenyou first took the case?

A.Less than 50 percent because,whenwe take acase, I do an analysis first and then I confirm itwith an expert.An expert toldme it was 50 per-cent or less.Looking at the survival rate, the earli-est time the cancer should have been diagnosedwas Stage 1 or early Stage 2 [of four stages].

Q.What was the biggest obstacle you had to overcome?

A. Essentially that the defense felt very comfort-able stating that this was a case that was defensi-ble. [But] when I was teaching at Suffolk LawSchool, I taught courses in reproductive medi-cine andmedical practice and the law, and inthose classes I was teaching a whole lecture onlost chance. So I had the pulse of what the coun-try was doing [on the subject].

Q. Did you look to other states that have the lossof chance doctrine for guidance in this case?

A.Yes, the majority of states have adopted the“lost chance.”Different states have differentways of adopting it.Massachusetts adopted aproportional [approach],meaning if Matsuya-ma had a 37.5 percent chance of survival, heshould be compensated 37.5 percent.

Q. What do you anticipate as a result of the SJCdecision inMatsuyama? Will the court be floodedwith similar cases?

A.The lost chance is limited tomedicalmalpractice,and the court has said so. In essence, they explainthat patients go to physicians looking formore com-fort and prolonging their life.Anybody that takesaway that chance,whether it’s 50 percent or less,should be held liable,and the patient that loses thatchance should be compensated accordingly.

Q. What do you see as the significance of the case?

A. In essence,what it does is itoffers a large group of people theability to get their case into courtthat otherwise would have es-sentially been dismissed. It hastaken away immunity from aphysician when negligence isless than 50 percent.And it gives[a plaintiff] an opportunity tocorrect an unfair situation.

Q. WillMatsuyama have any im-pact on the practice of medicinein this state?

A. I don’t think so.If a physicianpracticeswithin the acceptable stan-dard of care, it doesn’tmatter.Youstill have to showcausation— thatthe physician deviated from [that]standard.You still have to prove[that] and,as a result, the patient gothurt. It is the degree of injury that isaddressed by the loss of chance.

Q. Was there something in your experience as aphysician that led you to become a lawyer who fo-cuses on medical malpractice?

A.One thing that is paramount: I did a fellow-ship in reproductive medicine.At the time, theywere coming up with all kinds of interventions.But the legal arena was devoid of any guidanceto the medical profession.That was one of themajor impulses for me going to law school.

Q.Do you ever go up against former colleagues,and, if so, do you approach the case any differently?

A. I’ve comeup against several physicians I knewduring their training; I didn’t approach the cases anydifferently. I don’t believe there are badphysicians.Peoplemakemistakes because they take shortcutsor they overlook things.…Ihave friends in themedical professionwhohave said,“If I need to getsued,I’d rather get sued by you.”I like to believe thatmy reputation in town—even the defense barknows— is I don’t take caseswithoutmerit.

Q. When a legal case of yours does not involve ob-stetrics and gynecology — as theMatsuyama casedid, in being a case about gastric cancer — is thelearning curve shorter for you than it would be fora lawyer who isn’t a doctor?

A.Yes,because I know the anatomy like the palmofmyhand.…I like to believe that the learning curve ismuch easier forme.I rely on experts,but the assess-ment anddiscussion I do.…When a lawyer doesn’thave a [medical] background and can’t discusswiththe experts,hemay cut short a case that hasmerit.Bytheway, in theMatsuyama case, the expert for thedefensewas somebody I knew for 30 years.

— BARBARA RABINOVITZbarbara.rabinovitz@lawyersweekly.com

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Age: 61

Education:Suffolk University LawSchool (1987); University of BuenosAires Medical School (1971); ColegioNacional Mariano Moreno (1964)

Bar admission: 1987

Professional experience:Partner,Gorovitz & Borten, Waltham (1999-present); obstetrician-gynecologist,Massachusetts General Hospital(1991-2000), Beth Israel Hospital,Boston (1973-1990); adjunct profes-sor of law, Suffolk University LawSchool (1988-2001); professor, Har-vard Medical School (1973-2001)

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Max Borten on ...His most memorable moment at law school: “There weretwo moments: I never carried a backpack; I put my assignmentsin a three-ring binder. Everybody thought I was a professor.[And] nobody at Beth Israel knew I was at law school. One timeI saw a nurse from [the hospital’s] labor and delivery unit, alsoa student. I left that class.”

Highlight of his legal career: “For somebody to come fromanother country, another profession, and to argue before theSupreme Judicial Court was an honor more than a highlight.”

One thing about him that might surprise other people: “I’ma father of six kids, with four under age 5.”

Favorite book or film: “There are two: ‘The Verdict,’ [because]the real case happened at Beth Israel a couple of years beforeI was a resident, and ‘My Cousin Vinnie.’”

What has kept him in the practice of law: “I think that it’s fas-cinating.”

LAUREL H. BRANDT Springfield

Heading into trial, therewas noques-tion that the prosecution of JasonStricklandwouldnot be an easy one.Some of the doctors who ini-

tially treated the victim,HaleighPoutre, now 14,had concluded her injuriesmight have been self-inflicted.One of the prime suspects, the defendant’s

wife,Holli Strickland, had died in an apparentmurder-suicide prior to trial,whichmade it eas-ier for the defense to shift the blame elsewhere.And to top it off,all eyes had been on the case for

years,particularlywhen the Supreme Judicial Courtauthorized the removal of Poutre’s life support in2006 at the request of child-protection officials,whosaid the girl was in a permanent vegetative condition.But the child recovered and Strickland,

Poutre’s stepfather,was charged with abusingher.The case went to veteran prosecutor LaurelH.Brandt,who works in the homicide unit atthe Hampden County District Attorney’s Office.After a month-long trial, the jury found

Strickland guilty.Looking back on the case that began in 2005,

Brandt credits her boss,DAWilliamM.Bennett,with persuading her to become a prosecutor al-most 15 years into her career.“But for his willingness to take a chance on a

civil litigator who had done virtually no trialwork, I would not have had what I consider tobe an extraordinary experience as a prosecutor,”she says.“I was turning 40 and realized if I didn’ttake him up on this opportunity, I would havemissed out on something very exciting.”

Q.How long did the Strickland trial last?

A.Wehadmotions in limine onOct.28,and thejury came back onNov.26, so it

was fourweeks and a day.

Q.Presumably therewas a lotof talk around theThanks-giving table about the case.

A.Mymother wasa psychiatric so-cial worker formany years, so Ilike hearing herperspective onthings.DuringThanksgiving,

people were askingme a lot of questions, and Iwas fending them off just like I’m trying to fendthem off with you.

Q.Why the hesitation in talking about the trial now?

A.Hehasn’t been sentenced,and although Ithought hewould be by now,his lawyer has filed arequest to continue, so it’s still in litigation.And Ihave certain obligations of privacy as a prosecutor. Ican talk about things that were part of the record.

Q.What made you decide not to call Haleigh tothe stand?

A.After consultingwith the guardian ad litem,theDepartment of Children and Family,medical andother professionals who had been responsible forHaleigh’s care,and aftermeetingwith her,which Idid on several occasions,we concluded at the end ofSeptember that it really wasn’t in her best interest totestify in a public forum.Althoughwe believedtherewas information she could have supplied,wechose not to further traumatize her.

Q.There was a moment at trial when Haleigh’ssister misidentified the defendant.What sort ofanalysis do you conduct before deciding whetherto call a child as a witness?

A. I don’t really view children any different thanadults. But, as with all witnesses, you can’t con-trol what comes out of a witness’s mouth.Youcan anticipate and prepare yourself, but I don’tput words in people’s mouths, and I don’t re-hearse people. I’ve hadmurder cases with a childwitness who was 8 years old and was cross-ex-amined for an entire day. I recently had a 9-year-old in an armed home invasion case. I’ve neverreally seen problems with child witnesses.

Q.Observers said the videotape of Haleigh thatwas shown to the jury was extremely powerful.Why was it relevant, and do you agree it was themost significant piece of evidence in the case?

A.The videotapewas taken at FranciscanHospitalinAugust 2007.The doctor testified that it was rep-resentative of her current condition.I had anobli-gation under the statute to prove she suffered sub-stantial bodily injury,and thatinvolved permanent or prolongedinjuries,so I thought it was veryimportant that the jury see hercurrent condition.But I don’t

know itwas anymore im-portant than otherthings the jury saw.They also saw a video-tape of her frombeforethe injury inwhich shedanced a solo to amedley of Elvis Presleysongs,so you couldlook at the two videosand see the contrastsin her physical abilities.

Q.Although the jurynever heard about theSJC’s decision, a lot of

people inMassachusetts had.Why wasn’t it rele-vant at trial?

A.There are a lot of things that have happened inMassachusetts on account of the abuse of this child,and a lot of what happened flowing from this child’sinjuries really didn’t have anything to dowith thecriminal case.Neither sidewas seeking to suggest theSJC’s decision had anything to dowith the case.Issuesthat arose in other contexts didn’t play a part here.

Q.How difficult was it to handle a trial like this,which had so many unusual issues and which themedia and so many others were closely following?

A. I can’t speak to any other cases inMassachusettsexceptmy own.I will say that I tend to have casesthat reach a certain level of complexity. I don’t knowwhether it’s a self- fulfilling prophecy of a formerantitrust lawyer,orwhether it’s theDA’s assignmentof certain cases tome,but therewas a level of com-plexity in this case that I can concede.Not everycase hasDNAandmedical issues,and to the extentthis case had both, therewas a certain complexity.

Q.How did you counter arguments that Haleigh’sinjuries were accidental or self-inflicted, as someof the early medical evidence suggested?

A.One thingmedical experts agreed onwas thatwhen she suffered this very serious brain injury,shewas very quickly or immediately rendered un-conscious. If there had been an accident or self-abuse, shewould’ve been found in a puddle some-where. That didn’t happen in this case.

Q.Were you surprised Strickland testified?

A.Had I anticipated he would testify?Yes, I did.

Q. If you had to guess, howmany trials wouldyou say you’ve had in 31 years?

A. I haven’t kept track. I know there are peoplewhokeep a running list.Maybe I’m too disorganized tohave kept track.But the longer you do it, the fewertrials you have becausewhen you’rewilling to try acase,you accrue a certain amount of credibility andcases tend to resolve themselves short of trial.

—DAVID E. FRANKdavid.frank@lawyersweekly.com

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Age: 58

Education:Harvard Law School (1977);Cornell University (1972)

Bar admission:1984 (New York, 1978)

Professional experience:Hampden Coun-ty District Attorney’s Office, Springfield(1995-present); private practice, Springfield(1994-1995); Hampden County District At-torney’s Office (1991-1994); Bulkley,Richardson& Gelinas, Springfield (1983-1990); Federal Trade Commission (1979-1983); law clerk for U.S. District Court JudgeJohn R. Bartels (1978-1979); Cahill, Gordon&Reindell, New York (1977-1978)

PHOTOSBYMERRILLSHEA

Laurel Brandt on ...Her most memorable moment at lawschool:“Meeting my husband”

Highlight of her legal career: “It’s hard tofind just one in 31-plusyears. Having the op-portunity to be a prosecutor”

One thing about her that might surpriseother people: “I’m soft-hearted, but I fightit.”

Favorite book or film: “When the evil be-comes overwhelming, it would be: ‘WhenHarry Met Sally.’”

What has kept her in the practice of law:“Ifeel like I’m contributing, particularly all theseyears as a prosecutor.”

SHANNON FRISON Boston

Suffolk County prosecutors called itBoston’s worst mass murder inmorethan a decade.Three years after four aspiring rap-

pers were gunned down in amakeshiftrecording studio on Bourneside Street inDorchester,Calvin Carnes faced a SuperiorCourt jury in Boston.In a courtroom filled with the victim’s familyand friends, the lawyer defending Carnes wasShannon Frison, aMarine Corps veteran whohad recently left Dwyer & Collora in Boston toopen her own law office.During the trial, threats of physical harmagainst Frison became so serious that she hireda bodyguard to take her and to and from thecourthouse each day.But Frison didn’t let that slowher down.As shehad done in 2006when she secured an acquittalin another Bostonmurder trial,Frisonmanagedto impress those in the courtroomwatching her.Nevertheless,at the end of the four-week trial,which included 65witnesses and 200 pieces ofphysical evidence, the jury convictedCarnes afterdeliberating for nine days.The verdict came three months after Frisonwon an acquittal thousands of miles away inOkinawa for navy petty officer Sheila Daniels,who was accused of conspiring to murder herhusband’s girlfriend.“Even though [Carnes] was a loss, I knowmy

whole team did fantastic work on this hugecase,” she says.“It was like a company trying torun this thing. I know I didmy best, but the factsare the facts, and you can’t judge your perform-ance completely on the outcome.”

Q.The Carnes case became known simply as theBourneside murder.How widespread was theawareness of the case among prospective jurorsand the public?

A. If you said,“four boys killed in the basement,”they knew the case. Even people whomay notknow the street names or the boys’names or thedefendants’names knew about it. I live less thanamile from Bourneside, and I knew first-handhow it affected the community.

Q.Your last Suffolk murder trial was a not-guilty,which you said was your career highlight.Howdid you handle the Carnes verdict?

A. It was one of the lowestmoments ever.Therewere somany people at the courthouse that Icould barely get in.Theweight of being the onlyperson in the roomdefending this person,whereeveryone felt so strongly,was hard.Peoplewereaskingme how I could represent scum.It wasphysically difficult to stand there to saywhat Ineeded to say andwanted to say about him.

Q.Did any of the buzz about your performancereach you in the immediate aftermath of the verdict?

A. I had a crazy trying day where I had this bigloss, andmy client was sentenced to consecutivelife sentences, and the same judge [Margaret R.Hinkle] who sentenced him is telling me howgreat I am, and the police officers and the headof the homicide unit and the detectives are allcomplimentingme. It was just really a bizarreday— an emotional rollercoaster.

Q.Why did you need a bodyguard?

A.Therewas a lot of hostility from the victims’fam-ily and friends that was largely focused on the clientandme.I didn’t feel comfortable driving to thecourthouse andwalking over every day.The build-ing isn’t set up so that people can bewell separatedfor such hostile types of cases.

Q.Give me an example of a security concern?

A.Therewere familymembers trying to physical-

ly intimidateme.One guywould stand an inchfrommeon the other side of the bar.Hewouldwait until Calvinwas shackled and tellme:“You’regoing to burn in hell.”I tried to set up a systemwhere I wasn’t worried on a daily basis about howIwas going to get in. I wouldwalk in through theback door of the building instead of coming in thefront doorwith everyone else.The court officersletme do that every day for amonth.

Q.How did you concentrate on the case with allthat happening?

A.You’re nervous all the time.But once the jurywalked in, I felt completely focused on them.Atthat point, it’s not about the judge or people inthe back, even though there were tons of them.

Q.BetweenCarnes and the 2006 not-guiltymurderverdict, do you feel like you’ve burst onto the scene?

A.There were people who said to me,“We’venever heard of you before.Where did you comefrom?” I’ve been around, but part of my thing isthat I’ve been on and off of active [military]duty since 2002, and a lot of the cases I do areaway fromMassachusetts. I’ve had three cases inOkinawa; I have another one there in February.

Q.You successfully defended a woman there inMarch accused of conspiracy to commit murder.How does a Boston lawyer get that call?

A.Okinawa is a small place,and if you do right byfolks on cases,your name gets tossed around.TheMarineCorps is small, andOkinawa is even small-er. I was stationed there for a short time and peopleknowme.

Q.What made you leave Dwyer & Collora in2007?

A. I was getting to be an old associate and feltlike the firm wasmoving towardmore civilwork. I was interested in blue-collar criminalstuff.We were kind of growing apart, and itseemed like the smartest thing to do.

Q.What’s “blue-collar” criminal work?

A. Because people in society want to separatethe nicer gentler criminals from everyone else,they like to call it white-collar crime. I call whatI do“blue collar.” I do the stuff you don’t reallywant to hear about it, like violent crimes anddrug crimes.They’re cases that are just as im-portant as a white-collar defendant who hasmoney to hireWilmerHale. I enjoy being able todo high-level, high-quality work for people whodon’t have millions of dollars.

—DAVID E. FRANKdavid.frank@lawyersweekly.com

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Age: 38

Education:GeorgetownUni-versity LawCenter (1995);Harvard University (1992)

Bar admission: 1995

Professional experience:Frison Law Firm, Boston(2007-present); Dwyer &Collora, Boston (2000-2007);Marine Corps (1996-2000);Norfolk County District At-torney’s Office (1995-1996)

Shannon Frison on ...Her most memorable moment atlaw school: “Watching the RodneyKing verdict with my classmates andbeing very disappointed”

Highlight of her legal career: “Re-nardo Williams’not-guilty murder ver-dict in 2006”

One thing about her that mightsurprise other people: “I playedwomen’s professional football.”

Favorite book or film: “Beloved”

What has kept her in the practiceof law:“Everyone sitting in jail”

PHOTOSBYMERRILLSHEA

ROBERT C. KIRSCH Boston

Q. What has been your role in working on theGuantanamo detainee case?

A. I’ve been co-leading the case [withWilmerHalepartner StephenH.Oleskey] since it came in. Itwould have been totally consuming for just one ofus.About amonth or two after our firm [Hale&Dorr]merged [withWilmer,Cutler&Pickering]in the spring of 2004, the SupremeCourt deter-mined thatGuantanamoprisoners had rights un-der our habeas corpus statute.That day, some hu-man rights lawyerswho had been following thatcase contactedWilmerHale and asked if the firm

would bewilling to take on the case.By the end of the day, firmmanage-ment had agreed to take on the case.

Q. Why the decision to take it on?

A.Thequestion of whether peopleshould be held prisonerwithout chargegoes to the very core of our legal sys-tem.The opportunity to vindicate sucha fundamental rightwas toomuchofan obligation as a lawyer to pass up.

Q. How does this sort of representa-tion differ from filing habeas peti-tions in federal court here on behalf

of imprisoned defendants?

A. It differs a fair amount.Most habeas cases be-fore Guantanamo were post-conviction habeaspetitions.This [detention at Guantanamo] is es-sentially like the king imprisoning someone inthe Tower of London [with] no trial, no charges.Habeas corpus in this kind of case is significantin saying:“President Bush, justify your right forholding these men.”The court determined thepresident has no right to hold these men.

Q. How have you overcome the language differ-ences and the geographical distance?

A.We identified early on amanwe believe is thebestArab-English translator in the country.Hehappens to have an office in FaneuilHall [Market-place]. He has a small operation.His biggest clientat that timewas theU.S.StateDepartment.Thiswas a very brave thing for him to do.He had tothink hard about taking on this case [because] ifthingswent poorly,hemight lose his livelihood.Steve and I have eachmade 16 trips [to Guan-

tanamo] in the last four years. It’s essentially afull day’s travel.

Q.Was devoting this amount of time and effort to the

B1122 || LLaawwyyeerrss ooff tthhee YYeeaarr || 2008

Age: 51

Education:Cornell Law School(1983); Middlebury College (1979)

Bar admission: 1983

Professional experience: Part-ner, WilmerHale (1989-present);mountain climber in New Hamp-shire (1988-1989); associate, Hale&Dorr (1983-1988)

PHOTOSBY

MERRILLSHEA

Inthe emotionally and politicallycharged atmosphere that hungover this country in the years afterthe terrorist attacks of Sept. 11,2001, the world’s attention was

drawn to the U.S. military prison inGuantanamo Bay, Cuba.Terrorist suspects — or “enemy combat-

ants,” as they have been classified — werebeing rounded up in countries far removedfrom this one and taken to the naval basethat the United States established in 1898on the shores of Guantanamo Bay.The detention of the suspects and the

conditions of their confinement becamethe targets of human rights activists

here and abroad, and by the mid-2000sseveral U.S. attorneys had taken on thecause of freeing the detainees.Prominent among those lawyers

were three from two major Boston lawfirms: Stephen H. Oleskey and RobertC.Kirsch at WilmerHale and P. SabinWillett at Bingham McCutchen. Theylogged thousands of pro bono hoursworth millions of dollars in an attemptto secure the release of several of thedetainees.WilmerHale’s clients werefrom Algeria; Bingham’s were fromChina. Earlier this year, the lawyers finally pre-

vailed at the U.S. Supreme Court. In June,

the court ruled that the detainees have theright to appeal to civilian courts to chal-lenge their imprisonment. Last month, two lower federal court

judges ordered the release of several ofthe clients whom Oleskey, Kirsch andWillett have been representing and sig-naled the beginning of the end of theirinternment.With relief clearly audible in their

voices, the three local lawyers recentlyspoke with Lawyers Weekly about theirlong, labor-intensive advocacy. Askedwhy a lawyer would take on such adaunting challenge, in no uncertainterms Willett answered: “Because theyrun my flag up over a place where theywere torturing people.”

Continued on page B18

THE GUANTANAMO BAY LAWYERS

STEPHEN H. OLESKEY BostonQ.You have a long history in pro bono work.What was it about this case and your Algerianclients that caught your attention?

A.Really the chance to become involved in a sig-nificant constitutional issue that had arisen afterSeptember 11th and potentially play a role bysteering judicial and policy debate about how todeal with this issue of treatment of persons cap-tured or seized by theU.S.as alleged terrorists.

Q.Howdid you go about organizing the case, especial-ly given the geographical distance fromyour clients?

A.We were able to use [WilmerHale] lawyers inBoston,D.C., London,Brussels and Berlin. Itwas the first pro bono case involving multipleoffices.That proved invaluable because the menwere turned over in Bosnia illegally. Bosnia is inEurope and is subject to European human rightslaws.We needed expertise [in those laws].Do-mestically, we had incredible appellate expertisein the D.C. office, backed up by [WilmerHale at-torney] Mark Fleming in Boston.

Q. Last month, a federal District Court judge re-jected the government’s contention that five ofyour clients were enemy combatants and orderedtheir release from Guantanamo.How are you go-ing about securing their freedom?

A.We’re monitoring that forthwith. JudgeRichard Leon [inWashington,D.C.] asked theU.S. not to appeal, saying it would slow the re-lease. He asked the government to take him athis word, and we hope it will do so.

[Editor’s note: On Dec. 16,Oleskey e-mailedLawyersWeekly the following update:“The U.S.announced today it will not appeal the Nov. 20decision/order by federal Judge Leon grantinghabeas to five of the six.And, also today, the firstthree arrived home in Bosnia.”]

Q. I understand there is aGuantanamoBay BarAs-sociation.Are you amember?What is itsmission?

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Q. Your résumé indicates that yourpractice is focused on commerciallitigation and bankruptcy. How didyou come to be interested in de-tainees at Guantanamo Bay?

A. I went to a Boston Bar Associa-tion seminar, and it alarmed mewhen an Army captain impliedthat our country was in violationof the Geneva Conventions atGuantanamo. I started pokingaround — it was 2005 — and de-cided our firm should put a stop toit.

Q. Is there anything in your educa-tion and training as a lawyer and,for that matter, as a commercial lit-igator that prepared you for thiskind of pro bono work? Or is it anarea of law unto itself?

A.There is nothing about the sub-stantive law that I do that preparedme. But the training we get as triallawyers helped prepare me to tryto persuade [a court] why weshould prevail.

Q.What kind of time commitmenthas this required? Do you work onthese cases in your off hours?

A. It has been truly time-consuming.I think I spent 500 hours last year.There were a lot of briefings, manyhearings — it just took a lot of time.

Q. It’s known that the pro bonoservices of experienced attorneysare in great demand in many areas

P. SABIN WILLETT Boston

Continued on page B18

Continued on page B18

GUIVE MIRFENDERESKI Newton

Newton officials should have ex-pected trouble in 2006 when theydecided to use nearly $1millionin Community PreservationActfunds to upgrade two parks in the

Nonantum section of the city.Theymay have been doing something nice

for local residents.And the money was just sit-ting there, obviating the need to push for fundsas“capital improvements” in an always-unpopu-lar Proposition 2 1/2 override.But they alsoknewGuiveMirfendereski was out there.Mirfendereski, an energetic Iranian-born

lawyer and activist who operates a solo practiceout of his Newton home when he’s not busywriting about international law or making fur-niture from discarded lobster traps, had alreadyhelped sink the city’s plan earlier that year to useCPAmoney to build artificial-turf athletic fieldsat Newton South High School.Though his lawsuit alleging that the turf con-

stituted an impermissible use of CPA funds wasdismissed as premature, the city ultimatelybacked down.And when officials passed theirNonantum plan,Mirfendereski was waiting.Representing 10 taxpayers on a pro bono ba-

sis, Mirfendereski convinced a Superior Courtjudge that the CPA—which is meant to providemoney for historic preservation as well as the

expansion of recreational land and communityhousing— prohibited the park upgrades be-cause the land in question hadn’t been acquiredwith CPAmoney.The Supreme Judicial Courtaffirmed in a decision that, according toMir-fendereski, “dramatically alters the course ofbusiness” for municipalities seeking to use CPAmoney for capital improvements.Now,he says, townswill not be able to use the

CPA as an“end run”aroundProposition 2 1/2,aslong as there are 10 taxpayers willing to bring acase.Andwhile he admits regret that a legal tech-nicality deprived neighbors of aworthy project,the rule of law trumps.“With a fading degree ofaccountability,we’d end up in a society no longerruled by the intent of the Legislature,”he says.“This would not be a better society as a result.”

Q.What motivated you, a solo practitioner, to do$100,000 worth of legal work pro bono for home-owners in such an affluent community?

A.First,whatwas at stake in economic terms forevery householdwasmaybe $25 [in an annual CPAsurcharge to their property tax]. It would have beenabsolutely silly for them to spend $100,000 to go tocourt to save $25 at the end of the day.[It was also] an intellectual exercise.On one side

of the argumentwere 10 taxpayers perhaps not po-litically in tunewith status quo forces inNewton.

On the other sidewas a city con-fusing the popularity of the projectwith its lawfulness.Amessage hadto be sent that this didn’t comportwith the rule of law as a gov-erning principle inmunici-palities.And the kind of de-risionmy clients weresubjected to cried injusticetome. If I were in a positionto helpmake a case againstthat kind of arrogance, Iwas going to do it.

Q.Howwill this rulingchange the course of busi-ness regarding the use ofCPA funding for munici-pal projects?

A.CPAmoney can nolonger be spent on reno-vating ballparks and play-ing fields that have not

been acquired originally with CPAmoney.That inand of itself is not insubstantial in terms of mil-lions of dollars earmarked for a variety of projects.But it’s amixed blessing.On one hand,we have touphold the law.But there’s this pile of money thatif it doesn’t go to these projects,what will it go for?How’s it going to benefit the public? Inmanywaysit’s a gut-wrenching victory, and I’m very sensitiveto that,particularly when these two parks are inmy own neighborhood.Also, right now,we have a victory.But that

doesn’t mean that in, say,Winchester or Brock-ton orWorcester,CPAmoney will suddenly stopbeing spent on questionable projects. For that tostop, you’ll need 10 taxpayers to complain.

Q. So, how does this change anything?

A. It changes things for the law-abiding.There arealways scoundrels working around the edges of thelawwhowon’t see the light andwould rather pro-ceedwith business as usual until caught. I can ap-plaud peoplewhowill follow the law as interpretedby the highest court [in the commonwealth],butthere’s very little I can saywith respect to scoundrelswhowill choose to ignore it because late at nightthe traffic light is red,and nobody’s looking.

Q. Since the appropriation would have been per-missible had the land itself originally been ac-quired under the CPA,why was it so critical toblock a project that would have benefited thecommunity either way?

A.You’re absolutely right; that criticism is fair.Andthe objects of the project are all laudable.But the ar-bitrary use of this fund for projects that the Legisla-ture had not intended disrespects the law and dis-enfranchises the electorate that voted for this law onthe basis of certain understandings.

Q.Do you really think the Newton electorate,when voting to impose a CPA surcharge, had thistechnical distinction in mind?

A. It’s not just the Newton electorate whose in-tent or lack of intent was at issue.When legisla-tors were crafting [the CPA], they may have re-alized they had tomake sure it didn’t become aProposition 2 1/2 backdoor override.And oneway to do that was to make it a fund that didn’tsupplement the operational budget of the city.That kind of end run around the statute wassomething a lot of communities were doing anda lot of people were objecting to statewide.

Q.Might the SJC’s interpretation of theCPAactuallymake theCPA less attractive tomunicipalities becauseof such limitations on how they canuse themoney?

A. Some of the types of projects we’ve seenmayno longer be funded with this, but it doesn’tmean the usefulness of the statute has goneaway.Now that the money cannot be siphonedoff for the renovationof pre-CPA parks andathletic fields, it mightenhance amunicipali-ty’s ability to acquirenew open spaceor spend it onaffordablehousing, bothof whichmayhave beenshort-shriftedin the process.

— ERIC T.BERKMAN

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Age: 56

Education:Boston College Law School(1988); Fletcher School of Law and Diplo-macy, Tufts University (M.A., 1978; Ph.D.,1985); Georgetown University (1971)

Bar admission: 1988

Professional experience: Sole practitioner,Newton (1991-present); counsel, VicamLimited Partnership (1995-2003); generalcounsel, Zarc International (1992-1996); le-gal consultant, World Bank (1992-1994); as-sociate, Gaston, Snow, Ely & Bartlett, Boston(1988-1991); adjunct professor, BrandeisUniversity (1995-1999); adjunct professor,Fletcher School of Law and Diplomacy,Tufts University (1994-1996)

PHOTOSBYDAIVIDSPINK

Guive Mirfendereski on ...His most memorable moment at law school: “[Dean] Richard Hu-ber saying to me in class, ‘That’s all very interesting, Mr. Mirfendereski,but it’s unconstitutional,’regarding my questioning why a court couldnot weigh in on a legal dispute that was imminent and brewing.”

Highlight of his legal career:“As a summer associate in the sum-mer of 1987, I was given the job of writing a brief that would con-vince the clerk of the General Court to release a document enablingthe Massachusetts secretary of state to put on the ballot a questionregarding naming a part of Boston ‘Mandela city.’ The matter ap-peared on the ballot, though it didn’t pass.”

One thing about him that might surprise other people:“I comeacross as slightly abrasive, but when people get to know me, theyrealize I have an enormous capacity to get along with people.”

Favorite book or film: “My favorite book is ‘Crime and Punish-ment,’ and my favorite film is ‘Casablanca.’”

What has kept him in the practice of law:“The fact that it’s notexclusively what I do”

STEVEN J. SCHWARTZ Northhampton

After being institutionalized for adecade, an experience she likenedto a wrongful prison sentence,Catherine Hutchinson becameemotional last June when she heard

the outcome ofHutchinson, et al. v. Patrick, et al.But this time, the tears she was fighting backwere different from the ones she had shed dur-ing the previous 10 years of her life. This time,they were tears of joy.As lead counsel in the case,Steven J.Schwartz,

executive director of theCenter for Public Repre-sentation inNorthampton,had brokered a land-mark settlement that allowed nearly 2,000 individu-als with brain injuries— includingHutchinson,who suffered a brain-stemstroke in 1996— tomoveout of the institutionswhere theywere resid-ing and into integratedcommunitysettings.

The settlement resolved the class action lawsuitfiled inU.S.District Court in Springfield last year,which charged the commonwealthwith violatingtheAmericanswithDisabilitiesAct by failing toprovide the class with adequate community servic-es.An estimated 8,000 peoplewith brain injurieswere living in nursing and rehabilitation facilities inMassachusetts.Twenty-five percent of them,advo-cates said,would thrive in community settings if theproper services were available to them.The agreement has cleared the way for quali-

fied patients to leave the medically oriented fa-cilities and settle into more active, productiveenvironments, alongside their peers.The case represents the latest in a string of

victories for Schwartz on behalf of the disabled.Over the past two decades, he has procured therelease of thousands of similarly misplaced pa-tients from institutions.“It’s been a common theme tomy casework:

People have a right to go home,”Schwartz says.“People have a right to live among their families,their neighbors, their local communities. In eachof my cases, I like to see it as a different group ofpeople being given the opportunity to go home.”

Q.Has the impact of this case been confined toMassachusetts?

A.Therewas awrite-up in a feder-al publication inwhich the head ofthe [Brain InjuryAssociation ofAmerica]was quoted as sayingthat this case is amodel for otherstates to follow.

Q.Whywere somany peoplewithbrain injuriesmisplaced for so long?

A.Peoplewith brain injuries arenot themost politically influentialorwell-understood group of peo-plewith disabilities.Tomany, it’s a“new”disability,made public late-ly by thewar in Iraq.While thereis a stateDepartment of MentalHealth, there is no state agencyassigned to peoplewith brain in-juries. There are almost no com-munity programs.With very littlelegislative awareness or govern-

ment responsibility, it became commonplace forthese people to be placed in institutions,where thestate could shift the cost to the federal government,who coversmore than half the cost of nursinghome care but none of the essential rehabilitation.They cover the“front end”but not the“back end.”

Q.With regard to people with brain injuries,whatis so wrong with the conditions in institutions?

A.Nursing homes,while trained to distributemed-ical and nursing care,have virtually no training orexperience in dealingwith peoplewith brain in-juries. The staffs are supremely untrained and un-qualified.One thingwe know about rehabbingbrain-injury patients to optimum level and func-tion is that theymust be regularly engaged and ac-tive. Theymust re-learn to dowhat theywere previ-ously able to do.The primary experience at anursing home is passivity, low engagement,a lack ofactivity.The patients don’t cook or shop.They arewheeled to a TV room.It’s an environment of inac-tivity and boredom.

Q.What is the nature of the resulting programs?

A. In September, [U.S.District Court] JudgeMichaelA.Ponsor issued a final order approvingthe settlement.Therewill be two federally support-ed programs: theAcquired Brain InjuryWaiverProject,which is currently being designed and isscheduled to be submitted to the federal govern-ment in thewinter,and a second program,whichhas already been designed, that works to decreaseunnecessary admissions to nursing homes and in-crease discharges.That program is not specific topeoplewith brain injuries,but theywill receive adesignated portion of the services.

Q.Going forward,does the economic crisis loomas aworrisome impediment to the progress you’vemade?

A.Fromeveryone’s perspective,particularly thestate’s,all human service programs funded in partby the federal government aremore attractivethan state-run programs,andwill be prioritized tobe kept.They still costmoney,but 50 cents ofevery dollar spentwill be covered by the feds.Thestate is simplymore likely tomake cuts wherethey’re covering 100 percent of the cost. In addi-tion, both programs have the requirement that thenew services will not be significantlymore expen-sive than the old ones.The cost of nursing homesis very high by comparison.

Q.The settlement affects approximately only 2,000 outof 8,000 institutionalized individuals with brain in-juries. Is there another fight to be fought on this front?

A.That’s a good question.The answer is: likely.This is all the state will do right away. It’s possi-ble that of the remaining 75 percent of brain-in-jured people in institutions, a significant per-centage may be appropriate candidates forcommunity living.The problem is that there is astartling lack of information from the state.Allthe numbers on people with brain injuries arefrom federal data.The beneficiaries of the settle-ment are those for whom family members orothers have asked for help, and they represent ahuge, significant portion of that population;however, it might not be a sufficient portion.

—MATTYASmatt.yas@lawyersweekly.com

LLaawwyyeerrss ooff tthhee YYeeaarr || 2008 || B1155

Age: 62

Education:Harvard LawSchool (1971); Cornell Uni-versity (1968)

Bar admission: 1972

Professional experience:Ex-ecutive director,Center forPublic Representation,Northampton (1972-present)

PHOTOSBYMERRILLSHEA

Steven Schwartz on ...His most memorable moment at law school: “[Harvard LawSchool’s] Alan Dershowitz and Dr. Alan Stone taught one of firstcourses on mental health and psychiatry in the law, which reallyopened my eyes to civil rights issues and people with disabilities.”

Highlight of his legal career:“One of the earlier cases wasa classaction filing on behalf of people with psychiatric disabilities againstNorthampton State Hospital. The state’s closing of the institutionin1992 was confirmation that every single former patient was safe-ly and appropriately placed in the community.”

One thing about him that might surprise other people:“A key el-ement that has allowed me to do this so passionately for 30 years ismeditation. It’s been a sustaining aspect of this relentless pursuit.”

Favorite book or film:“‘Rain Man,’ ‘The Diving Bell and the Butterfly’—any good movies involving triumph by people with disabilities”

What has kept him in the practice of law:“Being in touch withpeople with disabilities on a daily basis”

K. NATHANIELYEAGER Woburn

WhenK.NathanielYeager wasasked to prosecute James Ke-own, the so-called“Gatoradekiller,” theMiddlesex Countyassistant district attorney was

flattered to be given the case,which had gainednational attention after Keown, a radio talk-show host,was arrested while on the air. ButYeager knew it would be tough.On one hand,circumstances pointed directly toKeown,an unsympathetic character enmeshed in aweb of lies whowas accused of spiking his wife’ssports drinkwith poison in 2004.He hadmoved hiswife, Julie, fromMissouri toWalthamunder falsepretenses before getting fired for stealing fromhisemployer and racking up thousands of dollars indebt,all thewhile keeping his wife completely in thedark.Also, Julie had a $250,000 life insurance policy,and doctors found ethylene glycol—a poisonmostcommonly found in antifreeze— in her systemwhen she died.But thesewere still simply circumstances. Juliehad a pre-existing kidney condition,so shewasn’tnecessarily poisoned to death.Meanwhile,despon-dent over her recent diagnosis, she theoreticallycould have ingested the chemicals herself.Accord-ingly, it took theDA’sOffice a year to indict Keown.But thanks to keymedical and computer-foren-

sics evidence that traced the death directly back toKeown,Yeager secured a conviction after less thantwo days of jury deliberations in a case involvingdozens of witnesses and reams of expert testimony.YetYeager says he was simply doing his job.“Most prosecutors don’t think in terms of victo-ries,” he says.“They think in terms of work theydid as a team and whether they did the best theycould do.…But this is one of the biggest honorsin terms of what I’ve been asked to work on.”

Q.Before trial,Keown’s attorney called the case“suspect”since it tookmore than a year to secure anindictment.Did you have any initialmisgivings?

A. I didn’t indict this case.LynnC.Rooney,who’snow a judge in [Dedham]District Court,did.Butthe case actually developed afterKeownwas arrest-ed.We became aware of a laptop at hismother’shouse,which ultimately came into [our possession].Significant forensic analysis was done on it over thecourse of the next year,producing evidence that dif-ferent poisons had been researched at a time priorto themurder,beginning inAugust of 2004 rightuntil [Julie] started feeling symptoms.That changedthe case dramatically.

Q.Howwere you able to isolate the ethylene gly-col as the specific cause of death when the victimrecently had been diagnosed with a kidney con-dition that had gone untreated for years?

A. It’s a complicated question.In her first hospital-ization onAugust 20,2004,she showed textbooksymptoms for ethylene glycol poisoning.Shewastaken to the emergency room in a stupor.But [staff]didn’t run all the tests they could have runonherblood.Therewas nohistory of drug abuse,whilemost ERdoctors’[ethylene glycol cases] arewithdrug addicts or homeless people.In this case, thewomanwas educated,a registered nurse,brought inby her husband at 6 a.m.with a very goodunder-standing of whatwas physicallywrongwith her,andshe didn’t die from this,so they never tested for eth-ylene glycol.They started to look at hermedical his-tory and saw things that indicated she likely had aformof kidney disease,and they treated her for that.Then, on September 4, 2004, she was broughtto the ER in amuch greater stupor but with theexact same symptoms.They tested for ethyleneglycol and it came back positive.They actuallyhad started the antidote, but it was too late.Her

brain and kidneys were massively damaged.Onautopsy, she had oxalate crystals [broken downfrom ethylene glycol] in both the kidney andbrain.And our expert opined that it was ethyl-ene glycol based on symptoms of August 20th.

Q.The defense argued that the victimmay have in-gested the ethylene glycol herself.Given that her hus-band hadmoved her hundreds of miles away fromher family and friends—plus her kidney conditionand the possibility that shemay have become aware ofhis lies and growing debt— couldn’t suicide be a plau-sible enough theory to at least raise reasonable doubt?

A.The fact that all the tests weren’t done onAugust20thmade it possible.But it was contradictedstrongly by the evidence. If you start first with Julie’scomputer records [from the period between admis-sions], this is awomanwhowas not just concernedabout her health but obsessedwith getting better.Shewas a nursewho understood her situation andwas in constant contact withmedical professionals,trying to get better.And practically speaking, thiswas a registered nursewho certainly understoodquicker, less painful ways to kill herself.

Q.What would you say was your overall key tovictory in this case?

A. [Keown’s] computer. I learned [from this case]that even though you delete something from thecomputer, it still goes to unallocated space on thehard drive until you copy over that space.So theforensic analysis we did found a number of searchesthat were incredibly powerful.This guy looked at amultitude of different poisons—not just how theyworked,but how available theywere.And it’s notjust the things he did,butwhen he did them.He getsfired fromhis job in July for the kinds of things youcan’t talk to yourwife about.Within twoweeks,he’sresearching poisons.Themost powerful search tookplaceAugust 18th:“Ethylene glycol death human.”The computer program timed the search as twodays before she presented to the hospital for the firsttime.Sowhen you’re talking about state of mind,hercomputer evidence demonstrated a state of mind toget better.His computer evidence demonstrated hisstate of mind,whichwas how to kill.

Q.Middlesex CountyDistrictAttorneyGerard T.Leone said you gave“one of themost outstandingclosing arguments” that he had ever heard.Describeyour approach to crafting your closing in this case.

A.Oneof the real dangers of amedical case is that itbecomes overwhelming.Gooddefense attorneys usemassive amounts of complex information to createdoubt.So finding away to talk as concisely and clear-ly as I could about themedical part of the case andexplain it as clearly as I could— that tomewas thehardest thing.I startedwith September 8th,when itwas confirmed ethylene glycol poisoning,andworked back toAugust 20th,when they didn’t do allthe testing they could have done and compared thetwodates back and forth.Then I endedwith thestrength of the case,whichwasthe defendant’smotive.Because jurors distrust triallawyers somuch,you let the evi-dence do the talking asmuch asyou can.Weused two chalks,onewith the [Internet]searches she did and onewith the searches he didand put them side byside.Andwhen thisguy fledMassachu-setts, he left a lot be-hind. Butwhat he tookwith himwere the com-puters with the searcheson them.— ERIC T.BERKMAN

B1166 || LLaawwyyeerrss ooff tthhee YYeeaarr || 2008

Age: 41

Education: New EnglandSchool of Law (1995); Ameri-can University (1990)

Bar admission: 1995

Professional experience:Middlesex County DistrictAttorney’s Office (1996-pres-ent); Senate Ways & MeansCommittee (1996)

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SBY

DAVIDSPINK

Nathaniel Yeager on ...His most memorable moment at law school:“Becoming editor in chief of the New EnglandLaw Review”

Highlight of his legal career: “Being asked toprosecute homicide cases”

One thing about him that might surprise oth-er people:“I can’t drive. I have very bad eyes.”

Favorite book or film: “My favorite film is ‘Rudy’;my favorite book is ‘In Cold Blood’ by TrumanCapote”

What has kept him in the practice of law:“Making a difference”

B1188 || LLaawwyyeerrss ooff tthhee YYeeaarr || 2008

case an easy or hard sell to your partners at the firm?

A. It really was never a question. We approachpro bono cases the same way we approach casesfor our best-paying clients. When Steve and Iagreed to take this case, no one imagined itwould take the time and money: tens of thou-sands of lawyer- and paralegal- hours and manyhundreds of thousands of dollars.

Q.How does pro bono work on this scale enhance thefirm’s reputation? Could it be seen as too political?

A.My answer is “yes” to both. It definitely en-hances the firm’s reputation, and it’s very contro-versial. We view our role as lawyers as … mak-ing us responsible to take on important causeseven if they’re unpopular. While not all ourclients are cheering the results of the case, Ithink most of them are.

Q. The incoming president has said he wantsto shut down Guantanamo Bay. Will that sig-nal the end of your involvement in this par-ticular project, or will there be work yet to bedone?

A.At this point, we still have diplomatic and po-litical work to get our clients home. If the presi-dent-elect closes the camp, perhaps that will bethe time to move on to another case.

— BARBARA RABINOVITZ

barbara.rabinovitz@lawyersweekly.com

A. It’s very informal; it’s an Intranet. It has been agreat help, sharing information, explaining pro-cedures for getting to Guantanamo and what todo when you get there.

Q.WilmerHale is said to be the firm that investedthe most in this cause. What is the accounting, asof now, in terms of worth of billable hours,amount of time and number of lawyers?

A.Right now [second week of December] it’sjust over 49,000 hours from the inception of thecase almost four-and-a-half years ago. If thosehours were billed at the usual and customaryrates, it would be $18.3 million. There have been25 to 30 lawyers working on the case.

Q.Has this been a good investment for the firm,and, if so, why?

A. It’s one of the things we were founded to do:We do 5 percent of gross billings for pro bono.In practical terms, we have attracted younglawyers who want to be involved in a firm like

this. And our clients tell

us: “If you guys can wrestle down the U.S. gov-ernment in a case like this, we have no doubleabout your ability to do the same for us.”

Q. It’s been reported that the law firm that repre-sented so-called American Taliban John WalkerLindh removed its name from the case out of fearits offices might be attacked. Has WilmerHaleever feared reprisal?

A.There was a fellow named Cully Stimson, adeputy assistant secretary of defense, and in2006 he went on a talk show and listed 12firms [involved in the detainee litigation] andsaid clients might want to take their businessto other firms. He resigned a month later. Wetook the case on in about 36 hours. If we cantake on a case that fast, we are not deterred asa law firm by concerns about: “Will somebodybe distressed we’re defending the Constitutionin a case of national significance?”

Q.Do you have another pro bono projectawaiting your attention now?

A.There’s an NGO [non-governmental organ-

ization] called PACT, and it doesdevelopment work in 55 countries.I’m pretty committed to that andwill be spending more time[on that commitment] asthis case winds down.

—BARBARARABINOVITZ

barbara.rabinovitz@lawyersweekly.com

of society. Why was it important for you totake on this particular cause?

A. Because they run my flag up over a placewhere they were torturing people.

Q. In a recent op-ed you wrote in The BostonGlobe, you identified yourself as a partner at

Bingham and thendescribed thefirm as repre-senting Guan-tanamo prison-ers. Is this afirm-wide ef-fort, and areyou leading it?

A.Certainlythere is a largegroup of us inthis firm work-

ing on the effort; it’s a team of eight. And I’ve led that effort. When you’refighting the government, the amount of resources they can bring to bear isjust huge. You need a big team to keep up with them.

Q.On your résumé, you describe the firm’s role as “attempting to restore therule of law at Guantanamo Bay.”Are you finding that to be within the realmof possibility, or do you anticipate something else there in the foreseeable fu-ture?

A.There’s a lot of speculation about what President-elect Obama has saidhe will do. The U.S. military admits that our clients are not enemy combat-ants, and yet they remain there. The courts have not addressed conditionsof confinement.

Q. If you and the firm do help to achieve that goal, do you have another probono project in mind?

A.No, no, no. I’ve been so long at the wheel at this one that I long for theday it’s over. I’m very fortunate to be at a firm where I have so many col-leagues to help on both sides. Partners and associates have been wonderful[assisting] in the bankruptcy arena and on pro bono.

— BARBARA RABINOVITZ

barbara.rabinovitz@lawyersweekly.com

ROBERT C. KIRSCH

P. SABIN WILLETT

Robert Kirsch on …His most memorable moment at law school: “The pleas-ure and excitement of that first moot court opportunityconfirmed I had made the right decision.”

Highlight of his legal career:“The trial and the successful re-sult of these men [detained atGuantanamo Bay] so far hasbeen the highlight of my career.”

One thing about him thatmight surprise other people:“Before I was a lawyer, I was aweather observer at MountWashington in Sargents Pur-chase in New Hampshire. I’mnow a trustee of the MountWashington Observatory.”

Favorite book or film: “Doris Kearns Goodwin’s ‘Team ofRivals’ — it’s very well written, and aspects of it are very rel-evant to where we are as a country today.”

What has kept him in the practice of law:“I have had thegood fortune to pick a firm that has just grown and expandedand offered just wonderful opportunities. The firm has man-aged to continually draw interesting lawyers and interestingclients, and I also think, for the most part, my work is fun.”

Stephen Oleskey on …His most memorable moment at law school: “Workingas a law student intern in the Mississippi Delta in 1966, re-sponsible for school choice, public accommodations andwelfare rights for African-Americans”

Highlight of his legal ca-reer: “I think this [Guan-tanamo detainees] case ac-tually [because of ] itscentrality to our constitu-tional system of govern-ment”

One thing about him thatmight surprise other peo-ple:“Perhaps that I love cook-ing and consider myself apretty good cook [of] anything with Bordeaux”

Favorite book or film:“‘Point of Order,’ a documentary filmabout the Army-McCarthy hearings”

What has kept him in the practice of law:“The chance todo cases like this and represent paying clients who help tomake this all possible”

Sabin Willett on …His most memorable moment at law school: “There weretwo, and both involve Larry Tribe, my con law professor [atHarvard]. I actually stumped him once and got a round of ap-plause. [The second occurred] when I got my con law grade,and it was so low I thought it wasa mistake. Tribe had written in‘very low’ in the blue book. I re-gard that as significant since I’vespent the past three years litigat-ing constitutional law in this Git-mo case.”

Highlight of his legal career:“Itwas a pretty great momentwhen [U.S. District Court] Judge[Ricardo] Urbina in October or-dered our Uighur [Chinese Mus-lim] clients be brought to the United States and freed.”

One thing about him that might surprise other people:“I actually completed the Boston Marathon in 2004.”

Favorite book or film: “I have many favorites.”

What has kept him in the practice of law:“My completefailure as a novelist”

Age: 51

Education:Harvard Law School(1983); Harvard College (1979)

Bar admission: 1983

Professional experience: Partner,Bingham McCutchen, Boston (1991-present); member, Orr & Reno, Con-cord (1986-1989); associate, Bingham,Dana & Gould (1983-1986)

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STEPHEN H. OLESKEY

Age: 66

Education:New York Uni-versity School of Law (1968);Wesleyan University (1964)

Bar admission: 1968

Professional experience:Partner, WilmerHale, Boston(1988-present, 1981-1987);deputy attorney general andchief, Public Protection Bu-reau, Attorney General’s Of-fice (1987-1988); associate,Hale & Dorr (1968-1981)