Saturday, November 20, 2004
Good lawyers, good people
Roanoke lawyers John Lichtenstein and John Fishwick have the distinction of defending clients in a number of high-profile federal cases.
Former National D-Day Memorial Foundation President Richard Burrow got calls from two close friends who were also lawyers in the fall of 2001.
Burrow's successor, William McIntosh, had just announced that the foundation had asked the Bedford County Commonwealth's Attorney's office to look into why the foundation was more than $5 million in debt. That office quickly turned the matter over to the U.S. Attorney's Office.
The friends each told Burrow they thought he should seek some legal advice as soon as possible. And independently, they each recommended the attorney Burrow should go to: John Lichtenstein.
"One of the things that made it tolerable is John," said Burrow, who wound up spending much time over the next few years with Lichtenstein and other members of his small Roanoke firm after Burrow was indicted on federal fraud charges. "We spent a lot of hours together."
"Everybody in this firm took this case on personally," Burrow added. "It became the firm's vocation."
Lichtenstein, John Fishwick and their firm have the distinction of defending clients in two of the highest-profile federal criminal prosecutions locally: the cases of Burrow and Roanoke pain specialist Cecil Byron Knox.
The cases resulted in trials that lasted for weeks. In the end, none of the juries convicted Burrow or Knox of any crime.
Burrow was charged largely in connection with how he raised funds for the $25 million Bedford memorial. His two federal fraud trials ended in hung juries and U.S. Attorney John Brownlee asked the judge in the case to dismiss the charges against Burrow in October.
Knox is charged in connection with allegations that he prescribed medication outside the scope of legitimate medical practice, which federal authorities say led to the death or serious bodily injury of patients, among other charges.
The first trial of Knox and two people who worked with him ended in acquittals on many charges and a deadlock on the rest of the charges. He and his former office manager, Beverly Gale Boone, still face a second trial. (Charges against the third defendant in the case, Willard Newbill James, were dismissed.)
Brownlee described Fishwick and Lichtenstein in a statement released to The Roanoke Times for this story as "two of the finest attorneys in Virginia."
"Their clients are fortunate to have such talented and committed lawyers defending them," Brownlee continued. "On a personal note, both are gentlemen and represent the very best of the bar."
Lichtenstein, who has represented Knox along with Roanoke attorneys Tony Anderson and Melissa Friedman, has taken the lead for his firm in that case in examining witnesses, making opening statements and closing arguments, and dealing with the media. Meanwhile, Fishwick and other associates with the firm have done more work in the background.
"I would not want to see my husband's life in anyone else's hands," said Donna Knox, a Roanoke lawyer who is married to Cecil Knox.
Lichtenstein, the son of a longtime Roanoke attorney described by former Roanoke prosecutor Jonathan Rogers as someone "who succeeded by being one of the nicest guys in the world," and Fishwick, the son of the man responsible for building the railroads in Southwest Virginia, have undoubtedly been influenced by their families.
"John [Lichtenstein] has grown up with certain views of what lawyers do," said Roanoke Circuit Court Judge Clifford Weckstein, who had practiced with Lichtenstein's father, Barry Lichtenstein. Barry Lichtenstein died of cancer in 1981 at age 54.
Both Lichtenstein, 43, and Fishwick, 47, worked in law firms in Richmond early in their careers. According to several judges and lawyers, they could have written their tickets there working at large firms. But both chose to come back to live and work in the Roanoke Valley where they grew up.
And both men have also established themselves as leaders in the community and legal associations.
Fishwick, a prominent Democrat, was a nominee in 1992 for the U.S. Congress seat eventually won that year by Rep. Bob Goodlatte, R-Roanoke.
Federal Judge James Turk said in an interview that if John Kerry had won the presidential election, he thought Fishwick - one of Turk's former law clerks - might have been tapped to serve in the presidentially appointed position of U.S. Attorney.
In the courtroom, Lichtenstein projects an air of rangy earnestness, sometimes even flinging his tie over his shoulder as he sits at the defense table during trial, as if to remove every possible impediment - even sartorial - between his client and an acquittal.
Anderson recalls feeling vibrations during the Knox trial as he sat at the defense table. He looked over and realized it was Lichtenstein, jiggling his leg under the table and scribbling what Anderson described as a thousand words a minute.
"He's constant motion, constant energy," Anderson said.
Fishwick, though he appears more low-key in the courtroom, is no less tenacious, say lawyers who know both men.
More often than not, Lichtenstein and Fishwick take the side of the Davids instead of the Goliaths, said Rogers, who is good friends with both men.
"They could represent the Fortune 500, but they choose to represent the disadvantaged and trodden-upon," Rogers said.
Based on courtroom observations and interviews, Lichtenstein has also drawn some exasperation from prosecutors and judges for his tendency to emphasize -and re-emphasize -points during trial.
"He's a very good trial lawyer," Roanoke County Commonwealth's Attorney Randy Leach said of Lichtenstein, whom he also considers a good friend. "He'll drive you crazy, but he's very pleasant to work with."
Like a good couple, Lichtenstein and Fishwick play off each other and have a story about how they joined forces.
Both are married and have young sons. Both Lichtenstein and Fishwick and people who know them well credit their strong marriages as central to both their livelihoods and their lives.
"One of the reasons John Lichtenstein and John Fishwick do as well as they do are Annie Lichtenstein and Jeannie Fishwick," Weckstein said of their wives.
As for the beginning of Lichtenstein and Fishwick's law partnership, it was late one Friday night in the early 1990s when Lichtenstein was leaving work in the Liberty Trust building on the corner of Jefferson Street and Salem Avenue that he got stuck in the elevator, he said.
Fishwick, who was also still at work in the building at the time, heard Lichtenstein's calls and managed to pry the door open so Lichtenstein could climb up and out of the elevator.
They knew each other before that, but decided to join their practices about a year to a year and a half after that in 1996, Lichtenstein said. (Their firm is in the same building where the elevator incident occurred.)
"The great thing about our jobs is, we get to help people," Lichtenstein said.
The idea of helping people goes back to his parents' home, where Lichtenstein said he met most of his father's clients at the dinner table.
"I think John [Lichtenstein] learned that this business of equating the amount of time you spend on a case to the potential financial value of the case, or the potential amount that you can actually build a client, doesn't actually work that well," said Weckstein.
Lichtenstein also likely learned something about the tenacity that others have attributed to both him and Fishwick.
"Telling Barry no was just something that didn't compute," Weckstein said. "It was an invitation to further discussion."
Fishwick spent some of his formative years living in a penthouse in the Hotel Roanoke, according to Rogers. But the life choices he has made can also be traced back to his parents, who helped instill a social conscience, Rogers said.
"You've got to look to his mother and his father and how they raised him," Rogers said of John Fishwick. "They could have raised a spoiled brat, and they didn't."
Rogers also attributed many of Fishwick's qualities to the education he received at Harvard University and Washington and Lee Law School, and as a clerk for federal Judge Turk.
Lichtenstein and Fishwick's firm, whose third partner is Neal Johnson, also handles medical malpractice, product liability, commercial law and other cases, in addition to criminal defense work.
"Some of the best results are the ones nobody's read about," Lichtenstein said.
Weckstein said that Lichtenstein had always believed that there was a way to reach some agreement with prosecutors in both the Burrow and Knox cases.
"Often behind the scenes, more than others realize, he and opposing counsel have been very close to finding common ground," Weckstein said.
Fishwick said Lichtenstein's skill is finding two or three themes that run through a case, then distilling it down to a few sentences and explaining that to a jury. Fishwick's role, by contrast, is to figure out what about the sentences doesn't quite work, and how to fix them, Fishwick said.
"We fight hard, and we fight fair, and we usually shake hands after the case is over," Fishwick said of his firm's relationship with opposing counsel.
Lichtenstein and Fishwick both emphasized their faith in the jury system.
"The jury is the key to freedom in this country," Lichtenstein said.
Lichtenstein's defense of drug dealer Frank Pennington Jr. spanned more than 10 years. It included two trials, a conviction, an appeal, a hung jury, a withdrawn plea and Pennington's eventual plea to second-degree murder in the 1991 slaying of Bonnie Sue Mullins.
Roanoke Commonwealth's Attorney Randy Leach, who prosecuted Pennington, said it can be very time-consuming to try a case against Lichtenstein.
"He will not let something go if he thinks it's important," said Leach. "Sometimes when prosecutors don't think it's a particularly important issue, he goes on and on and on and on."
Pennington's two trials were each expected to last two days, but each stretched into a week, Leach said. But Leach acknowledged that it could be an effective trial tactic.
"You're going to get your money's worth," said Leach.
During Burrow's second federal fraud trial in Charlottesville earlier this year, as the trial stretched on longer than expected, Judge Turk chided Lichtenstein at one point, saying, "You've been testifying all day!" (Turk later said in an interview that he thought both Lichtenstein and Fishwick were well-liked and well-respected).
Weckstein indicated he had heard the view that Lichtenstein can be loquacious expressed before.
"One of the traits that John shares with his father is the fact that there are many times when judges feel reasonably certain that Mr. Lichtenstein has said all that needs to be said," Weckstein said. "But Mr. Lichtenstein - father or son - has only begun to talk."
In Burrow's case, Burrow pointed out that at his second trial, he was facing 160 years in prison and $6 million in fines if convicted of all charges.
"This was an attempt by the government to take my life away from me, and I was determined to win," Burrow said. "I could not lose. And the law firm absolutely agreed with me. And they took it on."
SOME NOTABLE CASES
Local cases John Lichtenstein, John Fishwick or both have been involved in during recent years:
Dr. Cecil Byron Knox -- Helped defend the Roanoke pain specialist on allegations that he prescribed medication outside the scope of legitimate medical practice and other charges. Knox was acquitted on some some charges; others ended in hung jury; re-trial pending.
Richard Burrow -- Defended the former National D-Day Memorial Foundation President on perjury and fraud charges. Two trials ended in hung juries; charges eventually dismissed.
Larry Frazier -- Won a $350,000 settlement from Virginia for Frazier's survivors in the stun gun-related death of the Wallens Ridge inmate.
OTHER NOTABLE CASES
John McCloskey -- Fishwick has joined Roanoke attorney Jonathan Rogers in representing the family of the teenager who was brutally attacked at Western State Hospital in Staunton and later died.
Chris Henley -- Won a settlement of almost $1 million for a boy who was improperly diagnosed at a federally funded clinic in Saltville and almost died.
Amos Law -- Fishwick defended the only person to be acquitted as part of the moonshine crackdown called Operation Lightning Strike. His argument was that Law did not understand prosectors' questions when he testified under oath before the grand jury, also known as the "double negative" defense.
John Lichtenstein, 43
Residence: Roanoke County.
Education: University of Virginia, undergraduate and law school.
Family: Wife, Annie. Three sons, Jacob, Noah, Joseph.
Interesting facts: Played basketball for Cave Spring High School and is president of Temple Emanuel.
John Fishwick Jr., 47
Education: Harvard University, undergraduate. Washington and Lee School of Law.
Family: Wife, Jeanne. Two sons, Richard and Jack.
Interesting fact: Played on the tennis team at Harvard University.