Cultivated Compendium

I wrote a guest column for the Connecticut Law Tribune about the 14 months I spent as the Media Law Resource Center, how lawyers can use their law degrees in non-traditional ways and the need for lawyers to take on advocacy for public access to information:

For the past year, my byline has appeared in the Connecticut Law Tribune atop freelance news articles. But this time, I'm writing to discuss how the day job I've held for the last 14 months exemplifies how lawyers can use their law degrees without working for traditional legal practices. I'm also writing to discuss the need for lawyers to take on advocacy for public access to information even if media companies are not a regular part of their clientele.

Until recently, I worked for the New York-based Media Law Resource Center (MLRC), a nonprofit which fights to protect the First Amendment and which serves as a trade association for media companies and as their outside counsel. During the decade I've spent as a journalist, I've encountered many legal issues: being sued for defamation in a frivolous lawsuit; figuring out if a judge was really entitled to secrete away in his chambers a portion of a murder case file; looking into whether public record laws voted on by legislators and signed by governors apply to the judiciary, an independent branch of government. So it was a thrill to get my first legal job at a nonprofit that has been working for 30 years to advance the First Amendment and a body of law that protects the press.

My fellowship was not a traditional one that focused on litigation. I was essentially working for a bar association, so I coordinated the programming for a national conference for 400 lawyers; I wrote a conflict-of-interest policy; I wrote for and helped edit several of MLRC's publications; and I was a staff liaison to committees working on state legislation affecting the media and for lawyers who have been practicing media law for 10 years or less. Five other lawyers work at this nonprofit organizing national and international conferences, drafting model bills and taking on many other endeavors to bring together media-law practitioners from around the country and the world.

During a time of flux in the legal industry, this job shows that lawyers can use their degrees in nontraditional ways. We have a democracy because we have the rule of law. Law is not just about courtroom litigation but about the many activities that promote the principle that the law—and not the arbitrary, autocratic decisions of government officials—governs our society. A job that involves analyzing the law and influencing policy is just as good a use of one's law degree as working as a litigator or a transactional attorney at a law firm. Both are putting specialized legal education to good use.

Working at MLRC also gave me a bird's-eye view and understanding of many of the cutting-edge issues facing the media. National security and counterterrorism policies are diminishing press freedom. The Committee to Protect Journalists found that President Barack Obama's administration has aggressively prosecuted leakers of classified information, caused government sources to refrain from speaking to journalists about of electronic surveillance programs, and secretly subpoenaed and seized reporters' phone logs and emails. Meanwhile, the growing "right to be forgotten" in Europe is the biggest threat to Internet free speech yet. And all sectors of the media business—newspapers, digital websites, television, books and radio—are struggling to get their audiences to pay for content and information.

The press is the rare profession to get a specific mention in the U.S. Constitution, but that special shoutout has not helped media organizations figure out how to make money in a free-market economy. And so while the MLRC's mission is an inspiring one, there are some depressing aspects to media law. Print and electronic media organizations have cut staffing and, along with that, reduced the resources dedicated to investigative reporting and fighting for access to government information. According to a 2013 survey of members of the National Freedom of Information Coalition and the MLRC's Defense Counsel Section, 46 percent of the attorneys polled reported that media organizations have substantially decreased legal resources devoted to freedom of information issues.

However, not all is gloom and doom. Newspapers are attracting billionaire investors. Amazon founder Jeff Bezos bought The Washington Post for $250 million, former hedge fund manager and Red Sox owner John Henry bought The Boston Globe for $70 million, and print-and-marketing magnate Glen Taylor bought the Minneapolis Star Tribune for an estimated $100 million. New media outlets such as BuzzFeed that once banked on click-bait content, cat videos and listicles are putting money into enterprise and investigative reporting. Several new startups on substantive policy problems have launched sites: The Intercept on national security, the Marshall Project on criminal justice, and other sites focusing on data-driven journalism.

Connecticut is having its own spree of journalism innovation. The Connecticut Mirror and the Connecticut News Junkie are digital-only sites that focus on watchdog journalism and public policy and political reporting. Earlier this year, the Columbia Journalism Review counted more than 100 news outlets providing local news coverage to Fairfield County residents, including 47 hyperlocal news websites.

While a media resurgence might on the horizon, it seems unlikely that more money will be budgeted for the fight for access to government information. The problem is acute. Connecticut is no stranger to government officials seeking to squelch the public's access to information. A bill that would have brought greater transparency to the University of Connecticut Foundation died in a General Assembly committee. Historians were unsuccessful this year in a push to get access to medical records in the state archives made available 50 years after peoples' deaths. No amendments were made to Connecticut's Freedom of Information Law to better balance the privacy of crime victims with public access to information (although there is a countervailing argument that protecting the privacy of crime victims and their family members can outweigh the public's right to access crime-scene information).

So I have two suggestions for members of the Connecticut bar on how they might help protect the public's right to access information about our government. First, take on independent news startups and bloggers operating on thin margins as pro bono clients. There is already a precedent for this, as Yale Law School has a clinic focusing on media freedom and information access.

Second, lawyers are often involved in civic life on an extracurricular basis, serving as zoning officials, school board members and in other roles. Lawyers involved in local institutions need to keep them accountable and make sure they operate transparently and with policies favoring public access. Many lawyers have told me they were inspired to go into the law because of the corruption that journalists Bob Woodward and Carl Bernstein uncovered in Richard Nixon's administration. Journalists and lawyers are kindred spirits in seeking justice. With the media industry still in a weak economic state, there is a greater role for lawyers to play in ensuring public access to information and ensuring our government is held accountable.

Amaris Elliott-Engel is a graduate of the Temple University Beasley School of Law and a former staff reporter for The Legal Intelligencer newspaper in Philadelphia. She was recently named the editor of the Commercial Litigation Insider, which, like the Connecticut Law Tribune, is published by ALM.

Here's a piece I wrote for the Connecticut Law Tribune regarding a former president of the Mashantucket Pequot Tribal Nation who, despite being a strong advocate for American Indian rights, is now serving a federal prison sentence for embezzling from the tribe:

Michael Thomas had a reputation as a "tireless and effective advocate" for the Mashantucket Pequot Tribal Nation, and he rose to president of the tribal council, a position he held for nine years, despite a difficult childhood. But now, with his conviction recently upheld by the U.S. Court of Appeals for the Second Circuit, Thomas will spend 18 months in federal prison for embezzling more than $100,000 in tribal funds.

It could have been worse for the former leader of the tribe that runs the successful Foxwoods Resorts Casino. When U.S. District Judge Janet Bond Arterton sentenced Thomas, she took into account his advocacy for American Indian rights and gave him a sentence that was more lenient than federal guidelines "to reflect [the] defendant's positive work for the tribe."

Over a two-year period, Thomas used his tribal American Express card to pay over $100,000 in personal expenses. Most of the money Thomas embezzled was spent on a car service he hired to bring his mother to and from her dialysis and other medical appointments, at $450 per trip. He also spent tribal money on Direct TV for his personal residence, Sirius XM Satellite Radio for his personal vehicle and cell phone service for two of his associates, among other expenditures.

Tribal law prohibited the use of the tribal-issued AmEx card to pay for personal expenses. Thomas himself signed that tribal resolution as the council chairman. But Thomas alleged that personal items could be charged on his card as long as they were reimbursed.

Prosecutors countered that Thomas had no way to repay the charges. His personal income was in decline and his personal checking account was overdrawn every month. Thomas also never reimbursed or attempted to reimburse the tribe for any portion of the $100,000 of the personal charges.

He was ousted from his elected position in 2009.

In the latest development, the U.S. Court of Appeals for the Second Circuit upheld Thomas' conviction on narrow grounds last month.

Thomas had been convicted of theft from an Indian tribal organization and theft from a tribal government that received $10,000 in federal funds. He agreed that his intention to repay the funds was not in itself a defense to charges of theft and embezzlement. But Thomas's counsel, Steven Rasile of the Law Offices of Mirto & Rasile in West Haven, argued that Thomas's "intent to repay, when coupled with the tribe's practice of permitting [Thomas] to place personal expenses on the tribe's charge card and reimburse them later could have demonstrated that the defendant lacked the requisite intent to commit the crimes with which he was charged."

The district court held that it was not relevant to the case that Thomas had previously reimbursed the tribe for $159,000 in personal expenses charged to his tribal-issued American Express card, or that Shalida Jones, another tribal councilor, had used her tribal credit card for $36,511 in personal expenses. If the defendant "had evidence that other tribal council members charged big-ticket items, like $80,000 of limo services, and went years without repaying, that's getting closer in comparability," Arterton said. "'From what the government is saying, there isn't any such evidence."

The Second Circuit panel of John Walker Jr., Jose Cabranes and Raymond Lohier Jr. rejected Thomas' contention that his due process rights were violated because he was not allowed to introduce that evidence at the trial.

"Even if the evidence at issue was sufficient to establish that the tribe, in practice, permitted its officials to charge personal expenses to their cards with subsequent reimbursement, such evidence would only have been relevant at trial if Thomas's conduct comported with that practice," the panel said. "Here, it is undisputed that Thomas did not reimburse the tribe for any of the over $100,000 in personal expenses that he charged to his card between October 2007 and September 2009—despite the fact that he was not indicted until January 2013."

Not only was Thomas' defense irrelevant to the crimes he was charged with, but the probative value of the evidence was substantially outweighed by the danger of confusing the jury, the court said.

The panel noted in footnotes that there were two issues of first impression in the case.

The first was whether theft from a tribal government could be prosecuted under a federal law that bars people from taking more than $5,000 in funds from programs that receive $10,000 or more in federal funds per year. While Thomas did not challenge federal jurisdiction over his embezzlement from the tribe, the panel did note that the Eighth Circuit has affirmed convictions in federal court for people who have stolen from a tribal government.

The second issue of first impression was whether a defendant's intent to repay funds can be used as a defense to charges of embezzlement and theft. The panel noted that, while it has not decided directly if a defendant's intent to repay funds is a defense to charges of embezzlement and theft, the Second Circuit has issued an unpublished opinion citing a First Circuit's ruling that "'an intent to return money or property is not a defense to the charge of embezzlement.'"

Rasile, Thomas' counsel, declined comment. Assistant U.S. Attorneys Christopher Mattei and Marc Silverman wrote the brief for the U.S. Attorney's Office in Connecticut. Mattei argued the case before the Second Circuit. That office declined comment as well.