By Susan Gluss
Jana Jett Loeb ’15 and Bevan Dowd ’15 competed in a contest of wits and stamina in the final round of Berkeley Law’s McBaine Honors Moot Court Competition on March 31. Three judges from the U.S. Ninth Circuit Court of Appeals challenged them with difficult and nuanced questions before an audience of students, alumni, friends, and family in Booth Auditorium. The Honorable Mary Murguia served as presiding judge, along with Judges Morgan Christen and Paul Watford.
The case, Risen v. United States, concerned a criminal trial subpoena compelling New York Times reporter James Risen to reveal the identity of a confidential source. In 2006, Risen had published a book describing a classified CIA operation designed to disrupt Iran’s nuclear weapons program. His source, according to federal prosecutors, was former CIA analyst Jeffrey Sterling. They issued a subpoena compelling Risen to testify at Sterling’s trial.
In her opening remarks, Petitioner Loeb argued that “this case is about freedom of the press” and urged the judges to reverse a lower court ruling against Risen. She later said the framers of the Constitution believed that the press was there to serve the governed—not the government.
Respondent Dowd argued that Risen “jeopardized our national security and the CIA’s anti-nuclear proliferation” program. She said that “reporters’ privilege”—the right to protect confidential sources—“shields criminals from proper prosecution.”
At one point, Judge Christen cited the 1972 Watergate break-in. She said the government’s position in Risen meant that prosecutors could have demanded the identity of Deep Throat—the secret informant who exposed the Nixon administration’s misconduct. After a thoughtful pause, Dowd agreed, but stood her ground.
It was a complex case. Easha Anand ’14, now a judicial clerk for Judge Watford, said the opponents rose to the occasion as the judges “pounded them with tough questions.” She sat “with fists clenched and clammy palms,” as she watched the spirited debate.
After deliberations, Judge Murguia announced Loeb as the winner of the event, calling both competitors “spectacular.” Judge Christen said they were “poised and well-spoken” and clearly did their homework. She commended Dowd for “taking time to think.” “I appreciate when a lawyer listens closely,” she said. “Not enough lawyers do that.”
Judge Watford applauded both Loeb and Dowd for answering the questions directly—and not steering the conversation back to more comfortable ground. “I can’t tell you how many times I have to tell attorneys, ‘you’re not answering the question. That was not true here.” He said both students “knew the case inside and out.”
Bill Fernholz ’93, director of appellate programs at Berkeley Law, called the performances “extraordinary,” and led the crowd in a round of applause.
During the judges’ deliberations, Crowell & Moring partner Gregory Call ’85 presented the 2015 Best Petitioner Brief to Samantha Reed ’15 and Best Respondent Brief to quarterfinalist John Chamberlain ’15. Call emphasized the importance of a brief, calling it a “powerful and long-lasting first impression” before an attorney goes to court.