74 t h e a m e r i c a n l a w y e r m o n t h y e a r 75

An unsolved murder. A wrongfully convicted boy. And a ten-year battle to hold police and prosecutors responsible for their actions. “It’s scary

how little it takes for people in power to screw things up,” says one lawyer on the case. “And how much it takes to correct it.”

Devan Duniver was a little girl who liveD in new Phil-adelphia, ohio, in the summer of 1998. she was 5 years old, caucasian, with blond hair and blue eyes. Devan lived in a modest two-story apartment com-plex with her mother and older brother, and was supposed to enter kindergar-ten in the fall. she liked it when her mom read books to her, especially Dr. seuss’s One Fish Two Fish Red Fish Blue Fish.

in the summer of 1998, anthony harris was a 12-year-old boy who lived with his mother and two brothers in the same apartment complex. anthony was supposed to enter the seventh grade in the fall. he liked playing with legos and toy trains and had a favorite stuffed monkey that he brought to sleepovers. he was african american and tall for his age. his teachers considered him po-lite and well-mannered.

new Philadelphia is a town of about 18,000 residents, located 80 miles south of cleveland. much of the town has the look of a norman rockwell painting: stately homes from the 1800s and majestic old trees line the streets. in 1998, african americans made up 1 percent of the county’s population.

on the morning of saturday, June 27, 1998, anthony harris and his best friend went to ernie’s Bicycle shop. at 2 p.m. anthony walked home to check in with his mother, as she had told him to do. he ran into Devan Duniver’s mother, lori, who was looking for her daughter. lori offered anthony $5 to help her look. anthony searched with lori Duniver for several hours, then went home. later he stayed over at his friend’s house and they watched television. at 8:11 p.m. Du-niver called the police to report that her daughter was missing.

the town came out to look for the child. in the midst of heavy storms and tornado warnings, roughly 400 people searched into the night. the next day, around 2:30 p.m., two searchers found the little girl’s 40-pound body in a small wooded area less than 150 feet from Devan’s home. she had been murdered—stabbed in the throat.

By SuSAn Beck

saving anthony harris

Anthony hArris sAys the AccusAtions And their AftermAth “stomped A hole” in his life.

P h o t o g r a p h B y m a x s . g e r b e r

The American Lawyer | April 2015 4544 April 2015 | americanlawyer.com

IN NOVEMBER 2012, THE CORPORATE LAW GURU WHO IS MOST REVERED BY MANAGERS faced off against the corporate law guru who is most feared by managers, at the Conference Board think tank in New York, in a friendly debate that was about to turn hostile. Martin Lip-ton has defended CEOs against all comers since forming Wachtell, Lipton, Rosen & Katz 50 years ago. Lucian Bebchuk, a Harvard Law School professor, champions the “activist” hedge funds that assail CEOs in an intensifying struggle for control of America’s boardrooms.

Speaking with a thick Israeli accent (“Vock-tell is wrong”), Bebchuk argued that shareholder activism helps companies in both the short and long term. Lipton, whose voice carries a trace of Jersey City (“The bawd is right”), countered that activism is awful for companies and the economy over the long run. “Nor do I accept [your] so-called statistics,” said Lipton fatefully. “Your statistics are all based on things like ‘What was the price of the stock two days later?’”

As Lipton finished the thought, Bebchuk twitched his foot. He unfolded his right leg over his left knee, and then reset his body. He licked his lips, pressed the button of an imagi-nary pen with his thumb, then lunged for a pad and started scribbling with a real one. Thus was born “The Long-Term Effects of Hedge Fund Activism,” the paper that turned a genial debate into a nasty war over the direction of corporate America. (It’s to be published in June by the Columbia Law Review.)

At 83, Lipton is a blue chip stock. He’s one of two people to make every list of the 100 Most Influential Lawyers in America since it was launched by the National Law Journal 30 years ago. (The other is Beltway legend Thomas Hale Boggs Jr., who died last September, just months after ailing Patton Boggs merged with Squire Sanders.) Wachtell Lipton remains The Am Law 100’s runaway leader in profits per partner, as it has been for 15 of the past 16 years.

Lipton is most famous as the inventor in 1982 of the “poison pill” defense to corporate takeovers, which enables a company to dilute the value of its shares when a hostile bidder draws near. He’s also heavily identified with the “staggered board,” which deters takeovers by spreading the elec-tion of a board’s directors over several years. It’s often forgotten that Lipton helped to pioneer the concept of the corporation that undergirds corporate social re-sponsibility. In his seminal 1979 work, “Takeover Bids in the Target’s Boardroom,” Lipton argued that direc-

Marty Lipton’s WarIn the battle for control of America’s boardrooms, activist investors are winning.

But not without a fight from Wachtell’s iconic co-founder.

BY MICHAEL D. GOLDHABER

For 50 years, Marty Lipton and his firm have sought to protect managers from hostile takeovers and, increasingly, activist campaigns.

P H O T O G R A P H B Y S T E V E N L A X T O N

64 T H E A M E R I C A N L AW Y E R M AY 2 0 0 0 65

B Y A L I S O N F R A N K E L

P H O T O G R A P H S B Y J I M A L L E N

On the way to a Supreme Courttest case with the school voucher litigation road show

CLINT BOLICK’S TRAVEL AGENT GOT HIM AN UPGRADE TO FIRSTclass on the 1:50 P.M. Delta flight out of Tallahassee on February 24, which wasa good thing. Bolick needed a drink. The litigation director of the Institute forJustice, Bolick had had a bad morning, arguing a summary judgment motion inthe courtroom of L. Ralph Smith, Jr., the state court judge presiding over Flori-da’s school voucher litigation. Bolick had tried to make the speech he’s made inso many school voucher cases over the last five years. “I represent the peoplewho have the most at stake,” he had told Smith (popularly known as Bubba), ashe gestured back to rows of parents wearing red, white, and blue “SchoolChoice” buttons. Judge Smith cut him off: “That’s irrelevant to the facial consti-tutionality.” Bolick, 42, has the manner of a teacher coaxing along a student, butthe judge balked at all of Bolick’s attempts to persuade him that vouchers aregood for Florida’s public schools. Bolick mustered a smile for the televisioncameras that surrounded him after the hearing, but by the time he got to theairport for the trip back to Washington, he was looking glum.

Until Robert Chanin boarded the plane. Chanin, a 65-year-old Brooklyn-born warrior with slicked-down gray hair, was the beneficiary of Judge Smith’srough treatment of Bolick. Chanin has represented the National Education As-sociation (NEA) for more than 30 years, and he is the lead lawyer for the coali-tion of groups that have opposed school vouchers in state after state. Chanin

BlackboardJungle

Free market meetspoverty law: ClintBolick’s genius forPR shines through.

July 2005 3130 THE AMERICAN LAWYER STUDENT EDITION

The Accidental

N THE FALL OF 1992, JAMES BLANK, A 26-YEAR-OLD FIRST-YEAR ASSOCIATE AT NEW York’s Mudge Rose Guthrie Alexander & Ferdon, got a call from partner Thomas Evans asking him to come byand talk about a new client the firm had agreed to represent. Blank had done some work for Evans after joiningMudge’s intellectual property litigation team following his graduation from the New York Law School. But Evansdidn’t want to talk to Blank about Nintendo Co., Ltd., or any of the firm’s other big IP clients. Rather, the newcase was representing Ernest Ray Willis, a man convicted of capital murder for setting a house fire in tiny Iraan,Texas, that killed two women.

Blank was a little surprised. Though he’d always assumed he’d do pro bono work for the firm, he wasn’t espe-cially interested in the death penalty, hadn’t done any clinic work on criminal cases in law school, and knew noth-ing about Texas justice. Nonetheless, Blank soon found himself seated in a room reading through 30 volumes ofWillis’s trial transcripts.

So began an extraordinary legal journey that would consume Blank for much of the next 12 years. During thattime Mudge Rose blew up, and Blank—along with other firm lawyers—joined the New York office of Latham &Watkins. Blank’s new firm would pour millions of dollars and thousands of hours of lawyer and staff time into rep-

resenting Willis, despite the long odds for a successful appeal. Since the death penalty was reinstated by the U.S. SupremeCourt in 1976, fewer than a dozen inmates have been freed from Texas’s swollen death row. Moreover, the Lone Star State’slegal environment had become increasingly hostile. By the late 1990s Texas’s Court of Criminal Appeals (CCA), the state’shighest criminal court, was composed of nine elected Republicans, most of whom were former prosecutors who ran on stronglaw-and-order platforms. A study by Texas Monthly magazine found that between 1994 and 2002, the CCA reversed only3 percent of death penalty convictions, the lowest percentage of any court of last resort in the nation. Additionally, after con-gressional reforms in 1996, federal courts became much less amenable to reviewing capital convictions.

“To succeed on a death penalty case, postconviction, you need to change the factual picture,” says Austin solo practitionerRobert Owen, a death penalty specialist who advised Latham on the Willis case. “You need to find documents never located, talkto witnesses never interviewed, get your own forensic experts. . . . It costs a tremendous amount of money and time.” Latham spentthat capital, and, in the end, all that stood between Ernest Willis and lethal injection was a group of volunteer lawyers from a com-mercial law firm, led by an associate who, by his own admission, started out knowing next to nothing about criminal law.

By the time the case made it to Blank, Willis seemed like a man out of chances. After being convicted in August 1987, helost his appeal to the Texas CCA, and his subsequent writ of certiorari to the Supreme Court was denied. Further, the recordbristled with what the prosecution claimed was overwhelming evidence that Willis had torched the house where he was tem-

IP H O T O G R A P H B Y D A N W I N T E R S

DEFENDERSFor 17 years Ernest Ray Willis sat on death row in Texas for a crime he didn’t commit.

His last hope rested with a team of young lawyers from Latham & Watkins who knew

more about trademarks and copyrights than the death penalty.

By Douglas McCollam

Ernest Ray Willis says that when hefirst met Blank, he was impressed butthought, “This is just a young kid.”

94 T H E A M E R I C A N L A W Y E R

By Alison FrankelPhotographs By Dana Smith

HOODRobin

in the

Dream buster? Extortion fighter? Rhetoric is flying as Phil Gramm attempts to dismember the Community Reinvestment Act. Philadelphia s bitterly fought CoreStates/First Union megabank merger reveals why CRA is such a lightning rod for controversy.

J U N E 1 9 9 9 95

As the former head of the Philadelphia Association of Community Develop-ment, Steven Culbertson now knows to get big-bank commitments in writing. But he learned the hard way.

CIVILInaction

M A R C H 2 0 0 1 8382 T H E A M E R I C A N L AW Y E R

P H O T O G R A P H S B Y M I C H A E L J . N . B O W L E S

IS LITIGATION OVER A SUPERFUND SITE WORTH $500 MILLION—OR NOTHING?

IT DEPENDS WHICH SIDE OF THE TRACKS YOU LIVE ON.

B Y A L I S O N F R A N K E L

IT WASN’T UNTIL AFTERTHE EPA SHOWED UP

THAT MARGARETWILLIAMS AND HER

NEIGHBORS STARTEDTHINKING ABOUT THE

BREATHING PROBLEMS,BIRTH DEFECTS,AND

CANCERS THEIRFAMILIES HAD SUFFERED

FOR YEARS.

SOMEONE FORGOT TO TELL THE SPINDLYrose of Sharon sticking out of the front lawn at104 Lansdowne Avenue: This house, like all of thehouses around it, is condemned. Nothing so pinkshould be growing in the gray dust of these de-serted streets in Florida’s Panhandle. Nothing atall is supposed to be living here, where mailboxesgape open and empty; where doors are markedwith oversized red-white-and-blue badges readingU.S. PROPERTY. NO TRESPASSING; where asmall mountain of dioxin-contaminated soil loomsover the landscape.

Once this was a neighborhood, a decent, close-knit neighborhood. Rosewood Terrace, Oak Park,and the Goulding subdivision were about the bestplaces a black family could live in Pensacola in thedecades after World War II. People bought quar-ter-acre lots, built little houses, planted gardens,harvested pecans, and stayed for years and years. Itwasn’t paradise—thick tar from the nearby Escam-bia Treating plant, which turned pine trees intotelephone poles, would bubble up from the sew-ers when it rained hard; and clouds of ammoniafrom the Agrico Chemical plant, a quarter-mileaway, blew over when the wind was up. But a lotof people in the neighborhood needed jobs at

124 T H E A M E R I C A N L AW Y E R

Dot-Com Wars

A P R I L 2 0 0 0 125

IN DECEMBER 1997 IRA MAGAZINER HAD JUST FINISHED A SPEECH TO A UNIVERSITY

audience. He decided to snoop around campus before catching his return flight to the nation’s

capital. The president’s former health care policy adviser—who had subsequently been asked to

head up the administration’s study of Internet issues—knew that the campus was home to one of

the world’s 13 “root servers,” the computers that store domain names for the Internet. The servers

enable Internet computers worldwide to speak the same language, so that when a Web user types

in www.nytimes.com, her computer translates the name into the numerical language of the Internet.

To Magaziner’s shock, he found his way to the server simply by asking directions from a student.

The computer sat unguarded in an otherwise empty, unlocked room, even though tampering with it

could at least temporarily disrupt the Internet for many users. Magaziner was dumbfounded. “I could

By Laura Pearlman

Illustrations by

Brad Hamann

Justiceand the

Truth,

The record-breaking $17 billion that Network Solutions, Inc.,fetched last month represented more than irrational exuberancein the Internet marketplace—NSI captured the price tag throughyears of hard-nosed lawyering.

A U G U S T 2 0 0 0 125

PHOTOGRAPHS BY DANA SMITH

124 T H E A M E R I C A N L AW Y E R

What Ellen Reasonover’s lawyers learned while working to free her from a Missouri prison is that the unthinkable does happen—prosecutorial misconduct can produce a conviction despite a complete lack of credible evidence. But proving that can be ridiculously hard.

By Steve Weinberg

roadedRAIL

Ellen Reasonover (right) and herlongtime defender, Cheryl Pilate,outside the prison at Chillicothe,Missouri: The system worked, butonly after failing for 16 years.