Unanswered Questions: Thinking For Ourselves
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DOJ Loses 9/11 Evidence Control Attempt
Ellen Mariani Case To Proceed
By Tom Flocco *
Scoop.co.nz
July 13, 2002
Synopsis: Judge Asserts Citizen Rights; Will Decide Discovery Issues, but DOJ Gains Seat Next to United Airlines
Defense as Lines Now Drawn in First 9/11 Lawsuit. UAL and Justice Attorneys To Be Last Firewall Against Possible Mariani
Access To Pre-9/11 documents, Airline Security Data/Programs - as Congress Remains Silent.
Photo By Kim D. Johnson, AP
911 widow Ellen Mariani, left, and friend four days after her husband's death in the World Trade Center disaster.
(New York City) On Friday, the Honorable Alvin K. Hellerstein, U.S. District Judge for the Southern District of New York, allowed Mariani vs. United Airlines (UAL), et. al. to proceed immediately into discovery after granting a Justice
Department motion for temporary stay, ending on September 20, Scoop Media reported Saturday.
A letter from Attorney General Ashcroft’s Justice Department (DOJ) office - leaked earlier to Scoop Media - had
indicated that DOJ was attempting to intervene to control the access to evidence in Hellerstein’s courtroom, among other
motions. The letter had revealed that Bush Administration officials at the Transportation and Security Administration
(TSA) were in effect tampering with witnesses already subpoenaed by plaintiff attorneys, advising them to send evidence
and documents to the TSA.
The Judge also affirmed a Justice Department motion that the government be a party in the discovery process, effectively
making the Justice Department a participant in Mariani’s case, while compromising on TSA representative Assistant U.S.
Attorney Daniel S. Alter’s motion to consolidate single purpose, “sensitive security information (SSI), covered by
statute to which the lawyers for Mariani did not object.
But Mariani’s lead counsel Mary Schiavo stressed that “the SSI category is very different than National Security, where
we are into top secret areas, a big difference.”
Assistant U.S. Attorney Alter had earlier pressed the Judge, worried about discovery involving, “other government
agencies,” and “secret information being disclosed,” presumably referring to documents validating the various news
reports already on the public record linked to such entities as the Federal Bureau of Investigation (FBI), Central
Intelligence Administration (CIA) and the Immigration and Naturalization Service (INS), etc. Alter called it, “avoiding
a hole in the net.” But the Judge wasn't having any of it.
Hellerstein asserted rights in private citizen civil actions twice, deciding to promulgate a plan of evidence discovery
that would include a few committees, so as, “not to compromise the ability of the plaintiffs in their separate and
unique types of litigation.” This referred to scheduling and call systems, information, and discovery programs, as the
Judge stressed his desire, “to be careful not to frustrate the process and control the litigation.”
Attorney John A. Greaves
The second time, he assuaged the concern of Mariani counsel John A Greaves that the consolidation could be too broad,
affecting the flow of litigation. But Hellerstein again reiterated, “this is private litigation - not government
litigation.” He added that “there has to be concern for private cases, so that [attorneys] can handle things in their
own way.”
He asked Mariani's Los Angeles and Washington, DC plaintiff firm, Baum, Hedlund, Aristei, Guilford & Schiavo (Baum-Hedlund) - which specializes in airline disaster litigation - to prepare to present a discovery plan for
requests of evidence, depositions, declarations, and other documents prior to September, when discovery is scheduled to
commence.
And while other plaintiff attorneys were present, representing multiple clients in other legitimate cases surrounding
9/11 deaths, it was clear that the Judge wanted to get the ball rolling with the Mariani case. The Judge's skills in
organizing the discovery seemed evident. But if the Judge was not pleased to receive the letter advising the
unprecedented DOJ intervention in his court, it was never observable.
The Mariani case’s long trek toward what the plaintiff termed as, “justice and accountability for September 11,” had
finally begun.
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The Lady Who Refused Taxpayer Money from “the 9/11 ‘Shut-Up’ Fund”
Courtroom chatter turned to whispers when the New Hampshire widow entered. The large gathering of lawyers turned almost
at once to look for the first time at the woman who had steadfastly refused since last year to accept taxpayer money
from the 9/11 Victim Compensation Fund in exchange for promising not to sue the airlines or the government.
The Judge asked ten of the 15-20 defense attorneys to move in front of the rail separating spectators from the bar, near
the two lead DOJ lawyers and UAL‘s lone lead attorney, “since there are more of you than the rest of us,” he smiled,
affably motioning.
There were numerous other younger, well-dressed men and women frantically taking notes, as if their chances for
government advancement depended upon it.
Hellerstein also waved more spectators and lawyers to move inside the entrance door to stand at the back of the crowded
but small courtroom in the Lower District of Manhattan, as a court artist sketched him and the teams at the table with
chalk colors. It was a somber and serious scene.
The widow had called the congressional airline bailout program, “nothing but a 9/11 ‘shut-up’ fund”, in prior news
reports, so the suits assembled in the room already knew about her.
Twice, UAL’s lead attorney moseyed over to stand right behind where she was sitting to get a closer look, right after
she entered the courtroom. Then she stood with her team and moved to the counsel’s table in front of the bar, opposite
the defense team.
Ellen Mariani is the wife of Louis Neil Mariani, who died aboard United Flight 175 when Arab terrorists hijacked the jet
and flew it into the South Tower of the World Trade Center.
“I really didn’t want to talk to him,” she told Scoop, after the UAL lead attorney from the Mayer-Brown firm mentioned
that his mother and sister lived in New Hampshire too - attempting to smooth things over before the proceedings began.
She had waited months for this moment: It was time for her new lawyers to represent her legal interests.
So intent upon holding UAL and the government accountable for her husband‘s death, Mrs. Mariani abruptly fired her
original attorney, Chicago’s well-known airline disaster specialist Donald Nolan, just two Fridays ago, for not being
aggressive enough in allowing her case to drag on since December 20, well into the summer.
The 25 or so lawyers present saw the new team at the table. They knew. Ellen Mariani means business. “They [the defense
lawyers] don’t know me yet,” she told Scoop Media outside the courtroom.
She had previously seemed upset at the June 11 Victim Family rally in Washington, DC: “I’m mad; and I haven’t even
really started grieving yet,” she told Scoop, adding, “I want action. And I want it now,” after trying to find the
office of Congressional Joint-Intelligence Co-Chairman, Democrat minority whip Nancy Pellosi, the most powerful female
in Congress.
During an informal press conference outside the courthouse prior to the hearing, Mariani told Scoop, “I do not want the
government sifting through my evidence and disclosure, deciding for my attorneys what evidence we can or can’t have.”
“President Bush was briefed in July and August last year about a possible attack,” she had said; adding that, “my family
and I need and deserve an answer that may become clear only during an open, fair, and complete investigation.”
Weeks earlier, she had said that “United Airlines didn’t do its job. The airport security was so poor that dangerous
weapons were brought on Neil’s flight. It’s so sad.”
And clearly concerned about her Friday hearing, she added “I just pray the Judge won’t let the government control access
to my evidence. Neil was taken from me in a ball of fire and the whole world watched.” But she’s enlisted the services
of a major-league law firm.
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“Scary Mary” Schiavo
Attorney Mary F. Schiavo
Ellen Mariani’s plaintiff team is led by former Inspector General for the United States Department of Transportation
(DoT), partner Mary F. Schiavo and her co-counsels, former Comair-Delta Airline Captain John A. Greaves and
Baum-Hedlund’s Washington D.C. office chief Cara J. Luther. Miss Schiavo, a licensed pilot and author, is considered one
of the foremost aviation safety experts in the world. Senior partner and former engineer Paul Hedlund is also a key team
member.
Schiavo earned the nickname, “Scary Mary,” during her controversial tenure at DoT for two White House Administrations
from 1990 to 1996. Her New York Times best-seller, Flying Blind, Flying Safe, exposing gross security violations at the
nation’s airports, forced a congressional hearing.
Her DoT staff, “was able to sneak guns, knives, grenades, and fake bombs onto planes 75 % of the time in 1992-93,”
according to an April, 2002 Ladies’ Home Journal feature article.
Mary F. Schiavo – Taking A Stand – Source - Ladies' Home Journal
The Federal Aviation Administration (FAA) promised to fix the problems; but Schiavo repeated the investigation and still
produced significant security lapses in 1995 and 1996. The FAA, “went into overdrive to try to get the report
classified,” [as sensitive security information (SSI)] Schiavo alleged in the, “American Women - Hear Us Roar”, Journal
interview.
“They [DoT] were clearly waiting for people to die. I prepared for my letter of resignation,” she said. Miss Schiavo was
also an aviation professor prior to joining Baum-Hedlund.
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UAL To Lean Heavily on Mayer-Brown’s Michael Feagley
Attorney Michael R. Feagley From Mayer-Brown firm in Chicago
Lead attorney for United Airlines.
Lead counsel for United Airlines, airport security, and insurance firms’ defense are partner Michael R. Feagley of
multinational firm Mayer, Brown, Rowe & Maw (Mayer-Brown) and Assistant U.S. Attorney Daniel S. Alter, with co-counsel, Assistant U.S. Attorney Sarah S.
Normand, representing the Transportation Security Administration (TSA) and the Department of Justice (DOJ), headed by
U.S. Attorney General John Ashcroft.
Mayer-Brown is a powerhouse multinational firm, with offices in numerous Western European countries and the United
States. Interestingly, its website lists such clients as Enron Corporation, both of whom maintain offices in the Caspian
Sea basin in Tashkent, Uzbekistan - near Afghanistan; German corporation Bayer AG - maker of cipro, the antibiotic used
to treat anthrax; and German banking giant, Deutsche Bank, for electronic commerce activities. According to wide
reports, two of the September 11 terrorist hijackers maintained bank accounts at Deutsche Bank, including leader
Mohammed Atta.
Michael Feagley, a Mayer-Brown lead attorney in more than 35 jury and bench trials, and evidentiary hearings, is a
recognized expert in witness testimony and evidence. And like 9/11 Victim Compensation Fund Special Master Kenneth
Feinberg, Feagley is an also an authority on alternative dispute resolution techniques - the art of bringing parties
together to compromise in legal disputes. His law firm biography lists the art of avoidance of and preparation for
potential future litigation as an additional key area of expertise.
Mayer-Brown’s website also lists a connection to President Bush’s family, in that one of its partners, John P. Schmitz,
personally represents and lobbies for both Enron and Bayer AG, while also sitting on the Trustee Board of Bayer
Foundation. Moreover, Schmitz, fluent in German, was White House Deputy Counsel when George H. W. Bush was both
President and Vice President, making the story’s legs that much more interesting.
But Michael Feagley has a job to do. His life has been dedicated to defending the legal rights of corporations who
depend upon his unique litigation skills and talents. But this will not be a cut and dried, undemanding case. There were
a lot of concerned attorneys in Judge Hellerstein’s courtroom.
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“Justice for our Clients”
The Mariani team also made itself available to the media before and after the hearing; and while reporters looked
outside for members of the defense, none were available. Before the hearing, John Greaves had told the media “We are
ready to go to discovery. Why is discovery delayed?”
“I think the government’s got a right to be involved,” he added. “But I don’t want them to have carte blanche. Heck,
they don’t want us to see the documents.”
Afterward, Greaves seemed to feel he received a fair shake after hearing Judge Hellerstein rule that he would personally
make the decisions on discovery documents as things progressed.
And Mary Schiavo reported that all her cases were, “good to go,” while disappointed that she was forced to put her
clients through unprecedented, closed courtroom, individual phone conferences in a last minute pitch by Victim Fund
Special Master Kenneth Feinberg on Thursday.
Feinberg warned them about, “suing airlines” and ,“you could lose the case.” But Miss Schiavo said all her clients
refused his, “you don’t have to do this - you can come to the [Victim] fund” entreaties. And “Scary Mary” would not let
up to CNN. “Why this furious attempt to stop discovery?” she said. “This is unprecedented. The government is intervening
to control discovery on behalf of the FAA, the TSA.”
John Greaves added, “We want justice for our clients. And we want to reach some common ground with the court.”
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Big vs. Little
Mother of the bride Ellen Mariani, left, and Lauren Coleman, second from left, look on during a kiss between the former
Gina Corcoran, center, and Chris Bronley, right, Saturday, Sept. 15, 2001, in the Westwood area of Los Angeles.
Mariani's husband, Louis Neil Mariani, was aboard United Flight 175 when it crashed into New York's World Trade Center
during Tuesday's terrorist attacks. The Marianis had taken separate flights to Los Angeles for their daughter's wedding.
(AP Photo/Kim D. Johnson) - Source URL
It was over now. Ellen Mariani had completed a very busy and tiring two days. She knows her battle with the government
and the airlines is just beginning; but after watching him, she thinks Judge Hellerstein won’t let the Justice
Department just run roughshod through her case - blocking, manipulating, or cheating her out of the evidence she needs
to prove it.
“I think he was very fair,” referring to Judge Hellerstein, as she finished a conversation with Scoop Media from her New
Hampshire home. “I feel much better,” she said. “It looks like my case will finally move forward.”
Putting the cell phone away, about halfway down the New Jersey Turnpike between New York City and Philadelphia, it was
exhilarating to have witnessed the courtroom commencement of one of those classic legal struggles between the little guy
and a whole swarm of lawyers - a real struggle for justice and accountability.
This one’s a sure bet for the history books, whether she wins or not. Mariani was the very first one. And Neal Mariani
has to be so proud of his feisty little wife, just now starting to
acquire the experience to articulate and parry with the hordes of reporters who keep asking so many questions.
She’s a brave woman, that Ellen Mariani. Her courage in standing up for the legal rights of all the 9/11 victims should
be an inspiration to Americans. Now we know who she is. But her stirring story is just beginning.
And you have to feel that Neal Mariani has about 2,799 other friends proudly smiling too.
(c) Tom Flocco, 2002, Used by permission
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©, Tom Flocco 2002
* - Tom Flocco is an independent investigative journalist, having previously written for Scoop.co.nz, AmericanFreePress.net,
WorldNetDaily.com, FromTheWilderness.com, NewsMax.com, NarcoNews.com, and JudicialWatch.org. Contact: TomFlocco@cs.com
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