Juris Magazine - Fall 2006

JURIS

THE DUQUESNE UNIVERSITY SCHOOL OF LAW NEWS MAGAZINE Fall 2006

Returning Home Dean Guter brings Naval know how, Duquesne Spirit to the Law School page 1

JURIS Fall 2006

IN THIS ISSUE FEATURES

Returning Home — by Jason Green . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 After a distinguished naval and law career, new Law School Dean Donald J. Guter sets the school on a course for success.

Finding Fisfis — by Peter A. Crusco . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 Duquesne law professor helps a prosecutor (and Duquesne Law alum) close a loophole in the UCC

A True Trailblazer — by Rachelle Poth . . . . . . . . . . . . . . . . . . . . . . . . . . 6 Meet the inspiration behind the television hit “Judging Amy”

Welcome New Registrar — by Rachelle Poth . . . . . . . . . . . . . . . . . . . . . . 7 New Law School registrar brings fresh ideas

Making a Difference in People’s Lives — Q&A with Geoffrey W. Melanda . . . . 9 An interview with District Attorney Laura Ditka

In The Child’s Best Interest — by Nicole Scialabba . . . . . . . . . . . . . . . . . . 11 D • N • A — by Kelly Hartmann . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12 The Innocence Protection Act: Are There Arguments Against Protection of the Wrongfully Convicted DEPARTMENTS

Message from the Editor-In-Chief . . . . . . . . . . . . . . . . . . inside front cover News Briefs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

STAFF Editor-In-Chief . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Jason A. Green

Inspirations

I

— Jason Green —

It took more than two years, but I finally figured out why I decided to become a lawyer. No, it’s not the prospects of a six-figure salary, the prestige of working at a well-respected law firm or the pride that accomplishing something that few are lucky enough to have an opportunity to do.

It’s people like Tommy Doswell that make this profession a noble one, despite all those silly lawyers’ jokes. Tommy’s just an ordinary guy. He grew up in Monroeville and later in Homewood. Always an athlete, he played football in college. He worked for Westinghouse and played semipro football for the Pittsburgh Colts.

But one day, through no fault of his own, Tommy’s life unraveled. A police detective, with an ax to grind, knocked on Tommy’s door and accused him of rape. He was subsequently convicted of a crime he did not commit, a nightmare of a kind that I only can imagine.

But Tommy held strong to his beliefs and refused to admit to something that he simply did not do. Because of this, parole was repeatedly denied. Tommy spent nearly 20 years in prison for a crime he did not commit. Last year, through the work of the Innocence Project, DNA evidence cleared Tommy of the crime. Despite spending half a lifetime behind bars, Tommy is not bitter. He’s now working for reforms so this travesty won’t happen to someone else.

Working in Duquesne’s Post-Conviction DNA Clinic, I had the opportunity to hear Tommy’s story first-hand. It truly was inspiring.

Faculty Advisors . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . John T. Rago Robert D. Taylor

We as students and alums of Duquesne have a lot to be inspired about. Not the least of which is Donald Guter, the former Judge Advocate General who took over as dean of the law school last year.

Contributors . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Pete Crusco Kelly Hartmann Geoffrey W. Melada Rachelle Poth Nicole Sciabbala

The Public Interest Law Association continues to raise money to fund public interest scholarships. Top-notch speakers like Judge Frederica Brenneman continue to share their stories with the Duquesne community. Alums continue to seek out their professors for professional guidance.

Contributing Editor . . . . . . . . . . . . . . . . . . . . . . . . . . . Geoffrey W. Melanda

Juris is an annual student publication of the Duquesne University School of Law. The views and opinions expressed herein are not necessarily those of JURIS or of the Duquesne University School of Law. © 2006 Duquesne University

I am proud to reintroduce Juris magazine, after a hiatus that lasted far too long. I hope you enjoy the magazine’s return. ú

Returning Home

C O V E R S TO R Y

— Jason Green —

Donald Guter brings Naval know how, Duquesne Spirit to the Law School

“It’s my law school,” he said in an interview in his office, where shelves are adorned with mementos, photos and artifacts from his distinguished naval service. “That’s the reason that I came here. If it weren’t my school, I probably would not have applied.”

Advocate General/Commander Naval Legal Services Command in October 1997.

Then, in June 2000, he became the 37th Judge Advocate General of the U.S. Navy, serving in that capacity until his retirement from military service in 2002. During his naval career, he also acted as one of the Navy’s script consultant for the CBS television series “JAG” and made a cameo appearance on the program.

Though small in stature, Guter, 57, has a tremendous presence. Speaking to students about the July 2005 Pennsylvania bar exam results last fall, his command of a room was evident. Though some of the students were not in complete agreement with his message, they clearly listened to what he had to say.

Upon retirement from the military, Guter became CEO of Vinson Hall Corp., a nonprofit continuing care retirement community in McLean, Va. He also served as executive director of the Navy Marine Coast Guard Residence Foundation, which raises money to enable veterans who were officers to live in the complex.

Perhaps it’s because Guter has extensive leadership experience. His career path is vastly different from that of leaders of other law schools, who often become dean after years of law school teaching and administration. Guter’s training came from a career of military service.

Guter also continued his involvement in the law, joining other retired officers in filing an amicus brief to the U.S. Supreme Court on behalf of prisoners at Guantanamo Bay, Cuba. The brief argued, and the high court agreed, that federal courts had jurisdiction over the base because the United States exercises unique control over it. The decision provided the detainees with a forum where they could seek release.

This led to additional contact with the Law School and when the position of dean came available, he applied.

Dean Donald Guter

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DONALD GUTER truly understands the struggles that Duquesne law students go through. About 30 years ago, in the mid-1970s, Guter was facing the challenges that all law students must face -- reading cases, preparing for class and trying to understand what’s going on. To add to the stresses of school, Guter was living in Forest Hills and married with two young children. He had returned to school after serving four years as an officer in the Navy, and making the commute and finding time to study was a challenging task.

Yet Guter, who became Dean of Duquesne Law School in August 2005, thrived on the challenge and excelled at law school.

And after a distinguished naval career that spanned more than three decades and led him to become the Navy‘s top lawyer, Guter has returned to one of the institutions that set him on his way.

Guter, who replaced Nicholas Cafardi, who served 12 years as the Law School’s dean, became reacquainted with Duquesne through a variety of alumni events, including a Wecht Institute program on terrorism in the 21st century.

“I enjoyed being back,” he said.

After law school, Guter returned to the Navy, serving as Trial and Defense Counsel in the Naval Legal Services Offices in Seattle. In 1980, he transferred to Great Lakes, Ill., where he worked as a staff attorney to the Administrative and Service School Commands before being assigned as a Special Court-Martial Judge. Guter moved to Washington, D.C., where he worked in the Litigation, Administrative Law and Military Personnel Divisions of the Office of the Judge Advocate General, as an assistant for legal and legislative matters in the Office of the Vice Chief of Naval Operations and as legislative counsel in the Office of the Chief of Legislative Affairs.

In July 1990, Guter was assigned as special counsel to the Chief of Naval Operations and in 1994, assumed command of the Naval Legal Service Office in Norfolk, Va. In July 1996, Guter became the executive assistant to the Judge Advocate General and was promoted to Deputy Judge

While his legal challenges in the Navy dealt with situations throughout the country and around the globe, Guter is dealing with more localized issues in taking the helm at Duquesne.

“It takes time to reach a consensus,” Guter said. “The process of working through problems is different.”

Improving the Bar passage rate is at the top of Guter’s priority list. During the last school year, he held sessions with students in an effort to see where problems lie. During the Spring Semester, students had additional opportunities to begin studying for the Bar via seminars taught by Duquesne professors.

The problem, Guter said, will improve with time and hard work. continued on page 2

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C O V E R S TO R Y

continued from page 1

“I think our professors want to help. They want to be part of the solution,” he said.

“It’s very frustrating to know that everyone we accept can pass the Bar, and they just don’t do it.”

Still, admission decisions need to be based on more than undergraduate grade point averages and law school aptitude (LSAT) scores, he said. Each applicant must be looked at as an individual.

One way to improve scores, he said, is through a review and revision of the Law School’s curriculum. Change is needed, Guter said, because there is no sense in having required courses that are not tested on the Pennsylvania Bar exam.

“There is not anyone we bring in who does not have the ability to pass the Bar exam,” Guter said. “We just have to help them when they are here.”

The long-range plans to better the educational agenda could include an updated curriculum, funding for additional professors, and hiring a Bar tutor to help students better prepare for the Bar exam.

In the short-term, the legal writing program will undergo some changes.

“It’s the main work in progress right now,” Guter said. “We’re not going to ignore other problems, but we’re going to focus on it.”

Helping the scores of evening division students improve must also be a focus. In prior years, evening students excelled on the Bar exam, passing at a rate that exceeded that of their daytime counterparts.

“Why is it lower now?” Guter asked. “I’m not sure what changed.”

Guter has already addressed low enrollment in the law school’s evening program, with enrollment increasing to 88 students for fall 2006, up from a historical low of 29 incoming students last year. For the evening students it’s a delicate balance, he said, as they often have less time and the demands of their employers to deal with. These challenges, he said, cannot be measured in a traditional way.

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One way to accomplish that will be with some help from Duquesne’s 6,500-attorneystrong alumni base. Guter said alumni have shown their support and have offered to help students who are in need, both with their time and with their pocketbooks.

“As time goes on, we’ll put it into more concrete terms,” Guter said. “I want to bring them back into the University.”

Guter, the first Duquense alumnus to serve as Dean of the Law School, said he wants the school to be the best it can be. He will look for ways for individuals to lend a hand and apply their vast talents.

“We have 6,500 alumni out there doing all kinds of tremendous things,” he said.

“Imagine if you could harness the talents of even a small percentage of them.”

The key, he said, is creating a spirit of helpfulness and encouraging people to reach out for the assistance they need.

“We really are here for the students, one at a time,” Guter said.

Guter has encountered difficult and challenging situations throughout his career, and he is pleased to have returned to his roots. “What I really like is working with young people and getting them ahead,” he said. “I really like the mission.

I’m glad to be back at my law school.” ú

PILA SILENT AUCTION A SUCCESS Duquesne Law School’s Public Interest Law Association (PILA) is dedicated to increasing awareness of public interest issues and to funding students who work in the public interest. The primary way that PILA raises funds for its awards is through its annual Silent Auction. This past year, the PILA Silent Auction raised more than $12,000. Those funds, along with generous contributions from the Law Alumni Association and alumnus David Millstein, enabled PILA Awards to fund eight students working for various public interest law organizations that strive to meet the legal needs of various disadvantaged populations.

STUDENT NEWS Congratulations to Darlene Wood who recently placed second in the American Bar Association Tort, Trial and Insurance Practice Section’s (TIPS) student writing competition for her paper entitled “Maritime Oil Pollution and Punitive Damages: Advocating International Environmental Consensus Law.” While working for Eli D. Stutsman during the summer of 2005, Maureen Rottschaefer, a second-year law student, helped prepare a brief for the physician and pharmacist respondents on the case of Gonzales v. Oregon, 546 U.S. ____ (2006).

Her assistance included researching whether the States have abandoned the locality rule in favor of a national standard of care for physicians. This research was incorporated into the brief for the respondents filed by Mr. Stutsman. On Tuesday, January 17, 2006, the U.S. Supreme Court released their decision on the case, where a brief mention was made in last paragraph of the Opinion of the Court alluding to this research.

JURIS

Finding Fisfis —Peter A. Crusco1 —

How a Prosecutor’s Strange Encounter with the Uniform Commercial Code Led Him to a Former Professor

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While I listened to a colleague condemn the chutzpah an incarcerated defendant had exhibited by apparently filing a bogus “UCC lien,” otherwise known as a “UCC-1 financing statement,” 2 against the prosecuting attorney and the presiding judge in his pending criminal case, vague memories of my UCC class danced in my head. It’s not that the Uniform Commercial Code is insignificant, but you would be hard pressed to identify any plot in the prime-time television line-up of law shows such as Boston Legal which involves the Uniform Commercial Code (hereinafter referred to as UCC).

The UCC is one acronym that is certainly not in the common lexicon of a career prosecutor. In fact, I would not be surprised if the last time I referred to the UCC was in my Duquesne University commercial transactions class more than 25 years ago. Suddenly, I realized that what I was hearing was that an incarcerated felon with much time on his hands -- and $20 to cover the state filing fee in his pocket -- had found a way to harass and intimidate the judge and prosecutor in his criminal case by utilizing the revised and Internet-friendly UCC. As a result of the bogus filing, any attempt by my colleagues to, for instance, sell their houses, obtain credit or finance a new car could be greatly complicated. Furthermore, I eventually could be a target.3 In a desperate attempt to block this potential calamity, and armed with the knowledge that twenty-three years of incarcerated “acquaintances” were in a position to do the same “filing” to your humble public servant, I was impelled to volunteer and handle the case. Little did I know that the next year would take me through the labyrinth of the Uniform Commercial Code, state court civil practice, a battle royale with a state agency that can legitimately rely on the oft-used maligned phrase, “that’s not my job,” and a reunion with a professor whose six-credit commercial transactions class 25 years ago was only a vague memory.

FALL 2006

in the amount of several hundred thousand dollars per usage. The correspondence also indicated that the “debtors” failure to respond to his letters would be interpreted as acceptance of the terms of the agreement to pay the use fees and acknowledgment of the debt. Of course, given the number of times the defendant’s name was used on the record in court in his criminal case, this added up to the tidy sum of in excess of $10 million.

Initially, as I perused the UCC-1 in question, it was unsettling to read. The so-called lien, filed with the New York state registry office, indicated that there was a security interest in “all of debtor’s assets, land and personal property, now owned and hereafter acquired, now existing, and hereafter arising, and whenever located....”

Although this description is not clear enough to identify the specific collateral in a security agreement, the registry office, acting in its ministerial capacity, duly recorded the UCC-1.4 The defendant’s back up documentation for the UCC-1, which was referred to but not filed with the registry office, had been sent through the mail to the alleged “debtors,” that is, the prosecutor and the judge. The defendant had taken advantage of Article 9’s revised requirements for memorializing secured transactions, which, to facilitate the electronic filing of financing statements, no longer required manual signatures.

Instead, the debtor must authorize the filing, typically by executing a security agreement, and the parties need only “authenticate” the relevant records.5 The prosecutor and judge received letters in the mail putting them “on notice” that the use of the defendant’s name without his express consent required payment of use fees and indebted them pursuant to the agreement -- an “implied contract” --

It was clear that I was facing an adversary who was creative with his legal analysis and had spent much time -- which apparently was not a concern of his given his present residence -- reviewing and researching the UCC, consulting with “in house” counsel and discovering the “loophole” which permitted the spurious filing. This loophole was greatly enhanced by the filing office’s acceptance of all filings, in other words, no prescreening of filings was done.6 No doubt, criminal prosecution was not a deterrent for this bogus filer because he was already facing 25 years on pending charges.

What was another year or two for forgery and false filing?

At that instant, I remembered a conversation with a Corrections Department Officer stationed at the lovely Rikers Island correctional facility informing me that when the inmates got tired of enjoying the waterfront view they could spend hours in the best law library on the eastern seaboard that taxpayers could provide. Obviously, at some point during his incarceration, the defendant tired of the waterfront view.

The UCC’s purpose was to simplify, clarify, modernize and make uniform in the 50 states the law governing commercial transactions.7 The defendant had turned the UCC on its head. This bogus filing was not unique. I found similar filings had been committed against other public officials in other states. The name “paper terrorism” had been given to this contagious scheme.8 Given that I had no genetic connection to Mnemosyne, the mythic titan of memory, continued on page 4

3

Finding Fisfis continued from page 3

I endeavored to locate a learned person or persons who could assist me in this race to knowledge. The first name that I recalled was my professor of commercial transactions, Professor Fisfis, a former prosecutor. On the first long-distance try, his secretary put me through to him. His generous and professorial kind nature still fully intact despite more than 25 years of academic weathering, he succinctly summarized the last two decades of Article 9 law including the 2001 revisions that the defendant had utilized to his advantage.9 My professor’s legal acuity, depth of knowledge and thoroughness clarified my mission, and his succinct summary of Article 9 was accomplished within my monthly billing rate. He even agreed to give my work a final edit. I had gained a powerful ally in this battle of wits.

Now my mission was clear: The bogus security interest had to be extinguished so that the public officials’ property could be freed of its burden. Litigation was commenced by an order to show cause and petition against the criminal defendant as well as the state official filing office in which the defendant had filed the UCC-1.

My comfort level was immediately in for a readjustment, though, when the case was transferred from criminal term to civil term.

Thus, I was required to pursue this cause in the unchartered waters of civil procedure.

THE LITIGATION Our Order to Show Cause and accompanying petition requested: (1) an order requiring the expungement of the UCC-1 record in the state filing office and, alternatively, (2) an order that a termination statement be filed as to the UCC-1 declaring the UCC-1 null and void and declaring that the named “Debtors” therein were in no way indebted or obligated to the named “Secured Party” and that no property of the “Debtors” was subject to any lien or security interest in favor of the “Secured Party ;” and (3) an order enjoining the Respondents (criminal defendant and filing office) from filing any other UCC-1’s or other liens of any kind against the “Debtors” by the “Secured Party” without prior court order; and

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(4) an order authorizing the “Debtors,” without further court order, to file UCC-3 termination statements with respect to any additional UCC-1’s the defendant may thereafter file; and (5) an order authorizing statutory damages as against the defendant in the amount of five hundred dollars pursuant to UCC § 9-625.

Specifically, we asserted that the UCC1 statement must be expunged and argued that the remedy of filing a UCC termination or correction statement was wholly inadequate. We contended that although an effective termination statement makes the public aware that the UCC-1 is ineffective, the termination statement does not differentiate between a legitimate financing statement and a “bogus” one. Further, we argued that the filing of the UCC-1 by the defendant was intended to interfere with, obstruct and delay the criminal court proceedings and to intimidate the court and the prosecutor.

Lastly, we contended that the filing of the UCC-1 violated the due process rights of the public officials involved in violation of the state and federal constitutions. In other words, that the bogus filing impaired a protected liberty and property interest in reputation, financial security and the concomitant ability to secure credit and established and maintain credit worthiness.

We alternatively argued that a termination statement be filed.

Interestingly, before service of the papers could be issued upon him, the defendant was declared incompetent to proceed by the court presiding in his criminal case.

This probably resulted in good measure from defendant’s continued outbursts and demands in his criminal proceeding that he be referred to as “secured party” instead of by his given name and his demands that the prosecutor and justice presiding admit to being “debtors.” This added the completely unnecessary complication of additional service of the papers on his nearest relatives, Correction Department mental health offices and the state mental health office.

Subsequently, the defendant, after a competency finding, answered the petition relying on his representation that he had sent correspondence -- prior to the UCC-1 filing -- to the prosecutor and judge notifying them that their use of his

“common-law copyrighted name” was illegal without due consideration paid in advance, that is, one half million dollars ($500,00). The defendant claimed that the UCC-1 financing statement was filed in good faith pursuant to an agreement with the debtors and claimed that the judge and prosecutor “have made acquiescence and tacit acceptance,” to the filing of a UCC-1.10 The defendant argued that the judge and prosecutor had a reasonable time to respond to the Notice by Written Communication (citing UCC § 1-207) and that he had an “equitable interest” in all of debtors’ property pursuant to UCC §9-607. The defendant failed to allege a specific legal or factual basis for any of these allegations.

The evidence including sworn affidavits of the judge and prosecutor asserted that there was no agreement between them and the defendant. The defendant countered in support of his position, UCC §§1-207 and 9-607. Nevertheless, both of these provisions require an agreement between the parties, and the defendant failed to demonstrate that an agreement ever existed between him and the prosecutor and the judge. A hearing was subsequently held and the court found that the defendant had failed to prove that a valid agreement existed.11 The agreement referred to in the UCC-1 lacked all the basic necessities of a valid contract. Further, the UCC-1 was entirely without merit and the court found that it was filed with the intent to establish an invalid lien and harass the public officials involved.

The defendant’s reliance on common law copyright principles was also determined to be without merit.12 The court found that although an Article 9 filing can perfect a security interest and provide priority rights against other creditors, in the case of copyrights, protection can only be obtained by appropriate filing in the copyright office.

In any event the defendant’s name could not be copyrighted.

Unfortunately, our request to expunge the UCC-1 filing was denied. The Court found that the UCC-1 met the minimum requirements set forth in UCC §9-516 (b) and, therefore, the New York filing office was required by law to accept and file it.

No grounds for refusing the statement as set forth in UCC §9-516(b) were present and Article 9, as enacted by the New York

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legislature, does not contain any provision which permits or requires the state office to pre-screen UCC-1 financing statements.13 Rather, the court determined that it is the function of the courts, and not the state filing office, to determine the validity of a challenged lien.14 Further, expungement was not an authorized option, as no UCC provision allowed for such remedy -- even when a lien has been adjudicated invalid or bogus.

The court also found that the filing did not violate the due process clause of the New York or United States constitutions, because a fraudulent UCC-1 filing does not give rise to any enforceable interest in property. The mere record of a lien does not exert a cognizable burden on a person’s interest in his or her reputation or adversely affect a credit rating. Further, the court held that the remedies provided in the UCC for victims of illegal or bogus filings such as a corrections statement (UCC 9-519) or a termination statement (UCC 9-509) were adequate to remedy the harm done.15 The court did order the award of statutory damages against the defendant per UCC § 9-625 (b) in the amount of $500 and with that, the litigation and my year-long saga in the world of commercial transactions came to an end. The prosecutor and judge could now take advantage of low interest rates and refinance their homes if they chose to do so without the burden of the bogus UCC-1 as an impediment. Moreover, no new bogus filings have occurred since the litigation ended more than six months ago, and a prison source advised me that the defendant only keeps very small amounts of money in his commissary account. Perhaps the five-hundred dollar judgment was sufficient deterrence to him and others?

This concluded my rendezvous with the UCC. It was an enlightening experience for me in more ways than one. It was another example of the law, in this case the revised UCC, trying to keep pace with technology. It was a demonstration that those motivated by evil agendas would use the changes and gaps in this race to their own selfish ends. Finally, Duquesne University School of Law which helped me begin my career path in the law was again, 25 years later, still there lending a helping hand. ú

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ENDNOTES 1

Mr. Crusco is the Executive Assistant District Attorney in charge of the Investigations Division in the Office of the Queens County District Attorney, New York City. He served as Executive Articles Editor for the Duquesne Law Review, Volume 18 and received his Juris Doctor Cum Laude in 1980. The views expressed herein are his own and do not necessarily reflect the policies or views of the Office of the Queens County District Attorney.

2

A financing statement, that is, a UCC1, indicates the existence of a security interest in an item of personal property.

A security interest in personal property is created by a security agreement between a debtor and a secured party describing the property so secured. In order for a secured party “to perfect” its security agreement as against all other parties the secured party will usually file in the designated public office a financing statement known as a UCC-1. See also UCC § 9-210. See, e.g., Fantry v Medical v Capitol Corp., 47 U.C.C. Rep. Serv.

2d (CBC) 354 (Conn. Super. Ct., 2002).

3

A properly filed UCC-1 creates a security interest that clouds the owner’s title to the personal property, making it more difficult for the owner to sell the personal property or use it for collateral.

See, e.g., State v Pultz, 238 Wis. 2d 93, 617 N.W. 2d 676 (2000). In New York the official filing office for the UCC is the New York State Department of State. Its searchable website declares that “knowing the current financial status of the debtor [i.e., potential borrower] before extending credit is crucial.” The forms and regulations pertaining to the UCC filing system are available on its website, <http://www.dos.state.ny.us/ index.html>. See, also, Juliet Moringelli, Revised Article 9, Liens From the Fringe, and Why Sometimes Signatures Don’t Matter, 10 Widener J. Pub. L. 135, 139140 [2001].

4

See UCC § 9-108 (c), Official comment 2; UCC §9-520; Christenfeld and Meltzer, Security Agreements Under Revised Article 9, NYLJ April 3, 2003, pg. 5, col.1.

5

See UCC §§ 9-509 (a), 9-102, 9-203; Christenfeld and Meltzer, Security Interest Opinions Under Revised Article 9, NYLJ Feb. 5, 2004, pg, 5.

6

See, UCC § § 9-509, 9-516, and 9-520.

7

UCC §1-102 (2)(a).

8

See, e.g., Mulvihill, Defendants say Judges, Prosecutors Owe Them Millions for Speaking Their Names, New York Newsday, www.nynewsday.com, July 25, 2003; Marzulli, Inmates Lien on Judges in Copyright Con, New York Daily News, June 12, 2003; Felon’s Lien Against Prosecutor Is Rejected as Attempt to ‘Get Even’, New York Law Journal, December 2, 1997. One recent news article indicated that the “copyright scam started in an Alaskan prison and has spread throughout the country.”

Marzulli, Judge Won’t Play Con’s Name Game, New York Daily News, February 16, 2004, page 4; Office of the Texas Attorney General Press Release, Morales Ends Paper Terrorism of Internal Revenue Service, October 20, 1997, posted at www.civil-liberties.com/pages/ newlaw.html.

9

In New York revised Article 9 was enacted by the 2001 regular Legislative Session on June 29, 2001.

10

See UCC § § 9-509; 9-502; 9-203; cf.

3-401; White & Summers, Uniform Commercial Code, § 22-3 [5th ed. 2000].

11

See UCC §§ 1-207; 9-607.

12

See, e.g., MCEG Sterling v Krim, 646 NYS 2d 778 (NY Sup Ct. 1996); In re Peregrine v Capitol, 116 BR 194 (C.D. Cal. 1990); 17 USC 301 (a).

13

Several states do allow for pre-screening of UCC-1’s. See, e.g., State v Lutz, 2003 Ohio 275 (2003).

14

See UCC §9-512. It should be noted that New York receives over 1200 new UCC-1 filings each day.

15

Under revised Article 9, financing statements are not removed from the records - instead additional information in the form of correction and termination statements is added.

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A True Trailblazer — Rachelle Poth —

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Inspiration for TV’s Judging Amy Visits Duquesne Law School

There was a time when only men studied law. It wasn’t a choice, but rather a result of gender bias. A woman’s place was in the home, not in the workforce, and definitely not in a law school. And then it changed, as women decided they, too, wanted to attend law school. But even with their ambition, their acceptance into the legal profession, and ultimately into the halls of Harvard Law School, did not happen overnight.

In 1871, the first woman petitioned Harvard Law School for admission and was rejected. In 1915, more than 40 years later, 15 women petitioned for admission, but were again rejected. Harvard’s President at that time stated that a “co-ed institution would be injurious.”1 By 1930, most major law schools were admitting women, but not Harvard. Despite numerous attempts and campaigns, and even the support of some of Harvard’s faculty, the school would still not admit a woman to the study of law.

There were 2,203 women law students and 3,385 active practicing female attorneys in the United States in 1930.2 By World War II, a quarter of all law students were women. Finally in 1950, after so many years of trying to gain admission and being rejected, Harvard Law School opened its doors to women. Among the first 14 women to attend was Judge Frederica Brenneman.

A 1947 magna cum laude graduate of Radcliffe College, Judge Brenneman did not always want to go to law school. In fact, it was something that had not even crossed her mind.

Judge Brenneman visited Duquesne Law School in October and discussed gender bias, her career and her daughter, actress Amy Brenneman, who portrayed a juvenile court judge in the television series Judging Amy. The show was based in part on Judge Frederica Brenneman’s life.

Because of the gender disparity present in the 1950s, I wondered why Judge Brenneman, or any woman, would aspire to go to law school. It seems that it wasn’t her idea, not really anyway.

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weeks for her to show up at Harvard, having missed the orientation and many classes. Being one of fourteen women in a class of 520 that year, I wondered how women were treated by the male students and the faculty. Judge Brenneman said they were “mostly ignored, by everyone.”

Neither faculty nor male students really acknowledged their presence. They weren’t provided with much assistance and had only one nearly inaccessible restroom. I got the impression that the women were just so happy to be there, that they learned to deal with the unequal treatment.

Judge Frederica Brenneman

Judge Brenneman had a degree in economics. In 1947, she was living in New York and working at the Bureau of Labor Statistics. Realizing that her job would not provide opportunities for advancement, she knew she would have to pursue an advanced degree. In making her decision on a degree, she had only one condition: avoiding writing a thesis. One day while visiting at Cambridge, as she often did, she spoke with some male friends who were law students. She shared this aversion of not wanting to get a degree in anything that required a thesis. (Somehow the thought of a thesis seems more stressful than law school preparation).

Her friends told her to consider getting a law degree because there was no thesis writing required. She became interested and told her friends “it’s too bad that Harvard doesn’t let women in.” As luck would have it, Harvard had announced just that morning that it would accept applications from women for its fall class.

Judge Brenneman decided to apply but had to wait for a form because they were being updated to include a box for identifying gender. She eventually received an application, applied for admission and was accepted, although she did not immediately decide to enroll.

September arrived, and still undecided about whether to enroll, it took three

I asked her if they spoke to the men, and she said they only ever said “Thanks guys.”

It’s hard to tell whether that was sincere or sarcastic, but as I said, I had the impression that it was more sincere, as in “thanks for letting us be here.” And the women were truly glad to be there, Judge Brenneman said.

While at Harvard, she met the man who would later become her husband. Invited to join a study group of three men, she accepted, and one of them, a man named Russell, eventually became her husband.

They continued dating and weren’t ever really acknowledged as a couple except for one rainy day during class (coincidentally the only time she was acknowledged.) There was an open window in the back of the classroom, and the professor addressed her and Russell and said, “Could the little family in the back of the room close the window?”

After graduation, Judge Brenneman was undecided about what she wanted to do with her degree. She served on a school board for a while, and also did title searches and helped with her husband Russell’s environmental law practice. One day, she received a call from a state senator asking her to be a law clerk. Her response was “what is a law clerk?” She accepted and worked as a law clerk until 1967, when the U.S. Supreme Court ruled that juveniles were entitled to constitutional due process. The Governor at the time had asked her to be a judge, and the legislature passed a bill creating three new judgeships.

Because her children were so young, ages 3, 6, and 7, she wasn’t sure that she really wanted to accept. Other women were

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Welcome New Registrar qualified, but they did not want to give up their law practice in exchange for a job paying $17,000 a year. So Brenneman decided to “put her hat in the ring,” figuring that she could always quit. But she says “it just clicked.” She served for 11 years, and was the second woman on the bench in Connecticut. In 1978, when the state trial courts merged, she became a judge in Superior Court.

When asked what area of the law she prefers, she answers “child protection.”

During her career she has specialized in abuse and neglect cases and fought for greater legal protections for children. She said she believes “the power of the social agency and the judge to take a child out of the mother’s arms should be extremely limited.” She disagrees with the “better safe than sorry” attitude, mainly because she feels that a child may suffer “greater long-term psychological harm as a result of having been taken abruptly from the mother.”

In addition to being in that first class of women at Harvard, she is known for having served as a consultant, providing ideas, advice and motivation for the series written by and starring her daughter Amy. When asked if there are similarities between the show “Judging Amy,” and her courtroom experience, she said it is a “fairly accurate, although sometimes rosier, portrayal of real events.” She even said “it is uncanny how similar Amy’s style is to mine, and how much Amy sounds like me.” Judge Brenneman was to appear in two episodes, one of which included her husband Russell, but both clips ended up on the cutting room floor.

Judge Brenneman spoke to a group of students during her visit and graciously answered questions on topics ranging from her courtroom experience to what it’s like to have grandchildren growing up in Hollywood and having a TV show modeled after her life. No matter what the question was, she was very open and willing to share her personal thoughts and family stories with those present. It is clear how proud she is of her family. After her speech, a reception was held in the student lounge in her honor, where students had the opportunity to sit down with Judge Brenneman and engage in more personal discussion with her. ú

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K

— Rachelle Poth —

“Knowledge is power, but application of the knowledge is the key.” These are the words of Valerie Harper, Duquesne Law School’s new registrar, who replaced Molly Sacks in January. Valerie is not new to Duquesne. During her tenure, she has received many awards, including the Apple Polishing Award for her excellence in staff performance, the Staff Service Award from the university president, and Staff Excellence Award for her profound concern for the spiritual and moral value of the Duquesne University Community.

She has been nominated by her peers for the Presidential Excellence Award, and also received a nomination for “Who’s Who Among College Administration.” In addition to her awards and nominations, she has been recognized by the administration, staff and peers for her continued dedication to the educational system.

Harper said she always knew she wanted to be involved with education. Her interest began after she was hired as an assistant to Duquesne’s resident director in 1986.

She applied for the position, was hired three months later and has been “hooked ever since.”

She continued in that position for nine years until being promoted to academic counselor, where she taught study skills and helped students make the transition from high school to college. In 1998, she was promoted to career consultant.

Although she took on many roles in this position -- supervisor, counselor, and teacher -- the result of her work was the same. She empowered and motivated the students to better themselves in preparation for their future, and significantly increased the student use of the Career Services Office. “I liked all three parts, I enjoyed the interaction with the students … and seeing them from start to finish and watching their transformation from the day they arrive to the day they graduate.” continued on page 8

FOOTNOTES 1

Harvard alumni bulletin. Today, about half of the Harvard Law students are women. However, as a result of the original bar against admitting women, fewer than one out of five living HLS alumni are women. Available at http://www.law.harvard.edu/alumni/ bulletin/2003/summer/feature_5-1.html

2

Available at: http://www.law.harvard. edu/alumni/bulletin/backissues/ spring99/article2.html

7

Welcome New Registrar continued from page 7

Q: Where did you receive your degree?

A: Valerie received her Bachelor of Arts degree in Sociology and Psychology in May 1995, and her Master of Science Degree in Education in May 1998 from Duquesne. She has continued to educate herself through several certificate programs, computer training and professional development, including spending two and a half years as an evening student at the law school.

She did all of this while married with three children and working full time.

Q: What are some areas that need immediate attention and change?

A: Harper has a running list of areas that need improvement. She knows there is a lot of work to be done and that many areas need immediate attention, but she realizes that not everything can be done overnight. She intends to work to eliminate the cluttering paper that constantly stuffs student mail folders.

Harper would like to have a listserv, which currently is not available, in her office, and believes this would make communication with the students much easier and with a lot less paper.

Another item on the list is a Web page devoted to the registrar’s office, through which students could access schedules, print drop/add forms, and obtain other general information. She finds the current block format of the schedules to be very confusing and wants to find a way to make it easier to understand.

Q: What will your availability be for evening students?

A: Night students have long expressed frustration with the registrar’s office, because it closes before they can arrive at school for evening classes. Harper plans to have extended office hours two nights per week to accommodate evening students. She also wants students to know she has an open door policy and students are free to stop by any time.

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Q: How does she plan to take on all of her new responsibilities?

A: She says she will “take each day as it comes,” and that “if you really like what you do, the product will improve.”

Q: How have you been welcomed and accepted into your new position?

A: Prior to being hired as the new registrar, Harper received support from colleagues and friends who wrote letters to the dean on her behalf. She said she feels “very blessed” for the wonderful experiences she has had at Duquesne and looks forward to continuing to have an impact on education and the students. She feels very fortunate to have the benefit of knowing so many people and being familiar with Duquesne, both of which have made the transition easier. Probably the biggest help, she said, has come from Marianne Buerkle, whom she refers to as the “best person.” She already feels very comfortable at the law school, and she is excited and looks forward to the new challenges ahead.

Q: What other activities are you involved in?

A: In addition to her work at the university, Valerie stays involved in educational and community service activities. She serves on the Board of Directors for Rainbow Kitchen, an organization which feeds the homeless and sponsors an annual Walk and Ride Against Hunger Fundraiser.

Harper also serves on the advisory board of Beth-Haven women’s shelter. She said she uses her background in education and career counseling to help women at the shelter to learn job skills, resume and cover letter writing and how to dress for business, so that they can obtain employment.

“

Prior to being hired, Harper taught study skills for 10 years at Duquesne, and last summer she served as an adjunct instructor for the summer academy for mathematics and science program at Carnegie Mellon Univesity, which she has been asked to return to this summer.

Harper also makes presentations to local high school and university students, and other professional or community groups on topics such as how to prepare for success after high school, getting into graduate school, resume preparation, and most recently “Working While Black, from Campus to Corporate.” After speaking with Harper, it becomes clear how dedicated she is to helping others to set goals and be successful in life.

“I love to teach or present because I enjoy the light in students’ eyes, young or the more experienced. When I can see that look and know that I have inspired them to reach higher.”

Q: What do you like to do when you have free time?

A: While its tough to imagine that Harper has any time left in her busy schedule, she said she always makes time for family and friends. She loves spending time with her husband Darryl, daughter Nicole, and two sons Khalil and Hasan.

She also enjoys nights out with the girls, reading, and taking exercise classes such as pilates, kickboxing, yoga and aerobics. ú

Knowledge is power, but application of the knowledge is the key.

”

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Making a Difference in People’s Lives — Questions & Answers with Geoffrey W. Melanda—

Veteran District Attorney Laura Ditka is Dedicated to Prosecuting Crimes Against Children

Who:

Laura A. Ditka

What:

Deputy District Attorney, Allegheny County

Born:

Columbus, GA

Grew-Up:

McCandless, PA

Education: B.S., Organizational Communications, Ohio University J.D., Duquesne University School of Law

Family:

Divorced Five-year-old daughter, Chloe

Laura A. Ditka

L

Laura A. Ditka (Law ’88) is a Deputy District Attorney for Allegheny County and the head of a special unit within the DA’s office dedicated to prosecuting crimes against children.

District Attorney Ditka recently sat down with Juris Magazine to discuss some high profile child abuse cases, the business of being a prosecutor and television’s seismic effect on the practice of criminal law. What follows are highlights from that conversation.

Q: Did you know while still a law student that you wanted to become a prosecutor?

A: No. I knew only that I wanted to litigate–to be in court.

Q: Why? A: I knew it was more interesting, faster, than other practice areas. I knew that it brought you into contact with people, with clients, every day. I liked that. There was an element of excitement to it that you don’t get doing other types of law.

Q: Fighting on behalf of real people with real wounds against real villains – has that proven to be stressful? In many other types of law, only money is at stake, not lives.

A: It’s more motivating this way, more rewarding. In cases involving money, a minor victory is a loss. With us, even the smallest victory can make a difference in somebody’s life.

Q: In what way?

A: There are lots and lots of cases where the police and the DA are the only ones giving a child a voice. The parent doesn’t want to hear or is unable to hear. We give children who’ve been victimized an opportunity to be heard, to help themselves get out of horrific circumstances. That’s very empowering. You can stop a cycle of violence or sexual abuse before it goes any further.

Q: It sounds like there are psychic benefits to your work, but how about when you lose? How does that feel?

A: One case did make me cry. I worked so hard on it. It was such a strong case. I was so mad. The victim was a pretty little girl who told her story so well. When you talk kids into testifying, when they have to tell the most unthinkable, hideous things in court while facing the accused, you say to them ‘If you tell the truth, it will all be OK.’ But sometimes it isn’t. continued on page 10

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Q: What of the material sacrifices of your career? Government work isn’t known to be especially lucrative, and a law school education can sink you deep into debt.

A: On the other hand, we aren’t bound by billable hours. We can stay home with a sick child. No one is checking to see if we put in 55 hours per week to raise the firm’s bottom line. But it’s true: You aren’t going to get rich this way.

Q: Do you think Pennsylvania ought to offer loan forgiveness for government lawyers?

A: Yes. These are lawyers who work for the public good, who keep drug dealers and other criminals off the street, and they have to work 10 years before reaching the level of an entry level associate.

Q: Does it bother you that newly minted lawyers can join big corporate firms and immediately make more money than a seasoned prosecutor?

A: A pediatrician doesn’t make the same money that a brain surgeon does. That’s the path they’ve chosen. What bothers me is that some of those lawyers think less of us because we do criminal law.

Q: You think there’s a stigma about criminal law, even with all the media focus on the profession?

A: I think it’s changing. The media has suddenly made criminal law sexy and hot. Traditionally, there was a belief that if you were a career prosecutor there was some flaw in you. It was not seen as a career path like, say, patent law.

Q: What do you think of the coverage of the Michael Jackson case, a high profile child abuse case?

A: Disturbing. The media purports to be interested in whether this child was abused, but really is interested in the salacious details, the conflict and the bizarre behavior of Michael Jackson.

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Q: Motives aside, won’t media interest in this case help you as a child abuse prosecutor?

A: Not in any way. The media is poisoning thousands of potential jurors by covering this case. When they go through inconsistencies in the child’s statements (I’m e-mailing NBC’s The Today Show on this very point), what is gained by that? This kid was a cancer survivor. The major details have never changed. These kids are just kids trying to talk about the horrors of what’s happening to them.

Q: What about the fictional takes on your job? What impact have TV shows like Law & Order and CSI registered on the profession?

A: I think CSI has done damage that can’t even be articulated. Jurors watch it, and all the other similar shows. They think that every case should have DNA testimony and lots of other physical findings -- blood and fingerprints.

Often in child abuse cases there is no physical evidence. It all comes down to credibility. But the average person doesn’t come into contact with the criminal justice system; they only know the dramatizations. I don’t open or close without mentioning CSI. I don’t have a choice.

Q: What of the criminal defendants?

Do you ever worry about them coming after you? There have been several stories in the news recently about criminal defendants seeking bloody revenge against government authorities.

A: I was once threatened by a defendant, as was his lawyer and the judge hearing the case. It’s disconcerting, but not unexpected. There’s an old saying: ‘If everybody left the courtroom happy, justice wasn’t served.’ This is an adversarial system; people aren’t going to leave happy. Still, it’s disheartening that people are taking out their anger on judges and others trying to uphold the laws that protect everybody. I hope it doesn’t become a trend.

Q: What’s the one thing you want people to know about your job?

A: I think being a prosecutor is the most fun legal job you can ever have. There’s a sense of camaraderie, and a collegial spirit. People can consider it as a career again. There’s honor in it again.

Q: Many lay people and even some law students believe the key to being a successful trial lawyer is aggression, rigidity, even mean-spiritedness. Do you believe that? How do you prefer to behave in court?

A: People confuse assertiveness with aggression. To be a good trial lawyer you need to be assertive, to champion your position. The best trial lawyers know this isn’t personal. It’s not about me getting him, about who has less objections sustained. We’re lucky in Allegheny County to have a collegial bar. Most people act with respect, treat others with respect.

Geoffrey W. Melada is a third-year law student at Duquesne University and a staff writer for Juris. From 2000-2003, he was an award-winning reporter for the Jewish Exponent newspaper of Philadelphia.

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In The Child’s Best Interest

I

Imagine you are 8 years old. You were taken away from your home two days ago because someone learned that there was no food in the house and that your parents would leave you alone for days at a time. Standing in a strange place, a big person in a black dress sitting up high said you had to stay with a different family. You don’t know these people; they are all strangers. Now, there are all kinds of people asking you questions about your own family, your parents.

And while everyone is asking you questions, no one is answering the ones you are asking. Where are my parents?

Why can I not see them? When can I go home?

It is the role of KidsVoice to seek the answers to these questions, and fight for the child’s best interests. When a child is abused or neglected, that child becomes involved with the Offices of Children, Youth, and Family Services (OCYFS) and is appointed an attorney from KidsVoice. The KidsVoice attorney serves as either counsel, fighting for the child’s wishes, or as guardian ad litem, acting in what the attorney finds to be the child’s best interest.

KidsVoice utilizes a Team Model Approach, pairing each attorney with a child advocacy specialist (CAS) to work together in identifying the legal and developmental issues of the child.

This ultimately guides how KidsVoice serves the best interests of the child. This team approach makes KidsVoice distinct from other child advocacy organizations.

FALL 2006

— Nicole Scialabba —

As a certified legal intern during the summer of 2005, I was assigned to a team, with my own caseload, appearing in court three days per week. I was responsible for consulting with the assigned CAS for each child, while working with OCYFS, service providers, and caretakers. I would also visit or speak with the child-client to make myself completely aware of the child’s wishes and creating a trusting bond.

Before I began my internship, I was nervous that I would not be emotionally ready to work so closely with these children – children with such turmoil and evils in their lives. But after learning the system and working with the children, advocating for these children became my passion. The child advocate plays a vital role in these children’s lives, serving as the direct contact through

which children can convey what they want to happen in their lives.

Some days were harder than others. It was frustrating to see a child struggle with the placement he or she was in, or to see a child constantly getting bounced from foster families and group homes. But the hardest thing to swallow was watching the parents struggle with their own demons, prohibiting them from appropriately caring for their own children. Regardless of what the children have been through, it seemed they always wanted to go home to their parents. It was difficult to explain to an 8-year-old all the legal matters that are affecting her life, mainly why she cannot go back to live with her parents.

There are still happy endings and success stories, where a child finally finds a foster family that suits him/her, or the child gets adopted. The happiest moments are when the parents turn their life around and can provide a stable and healthy environment for their child. It makes my day to be able to tell that 8-year-old that she can go home to Mommy and Daddy.

For me, the happiest moment was knowing that I had a positive impact on a child that I was representing, and that I had exhausted my capabilities to ensure what is in the best interests of the child.

Finally, the child has been provided with answers. ú

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D N A •

•

— Kelly Hartmann —

The Innocence Protection Act: Are There Arguments Against Protection of the Wrongfully Convicted

O

“Our procedure has always been haunted by the ghost of the innocent man convicted. It is an unreal dream.”1 Those are the words of Judge Learned Hand, one of the most influential authors of jurisprudence in America. He saw it in 1923 and we all see it now; we convict innocent people in America.2 With the advancement of DNA evidence analysis wrongfully convicted inmates are being exonerated.3 Each year, more wrongfully convicted men and women are being set free, yet we continue convicting innocents.4

On October 30, 2004, President Bush signed a bill passing the Innocence Protection Act (IPA).5 The IPA will ensure inmates who have been wrongfully convicted a chance to prove their innocence.6 One would think legislation like this would pass quickly and easily; that was not the case.

the gravity of the situation until I heard Kirk Bloodsworth’s story. That was truly convincing.

I have heard Kirk Bloodsworth speak twice, and I have read his book recounting his years behind bars and his subsequent release. In 1993, Kirk was the first person in the nation released from death row pursuant to exculpatory DNA evidence.9 Kirk was 39 at the time and had been in prison for eight years for one of the most heinous of crimes: the rape and murder of a young girl.10 He had spent two of those years on death row before his sentence was commuted to life.11

The IPA was challenged from the outset.7 Many have argued against it and many still do.8 What could possibly be the argument against legislation that would ensure the innocent are not wrongfully convicted, or worse, the innocent are wrongfully executed?

THE STORY OF KIRK BLOODSWORTH The first time I heard about wrongful convictions and post-conviction DNA testing was the middle of my first semester in law school when I was introduced to Kirk Bloodsworth, the first man exonerated from death row for wrongful conviction based on exculpatory DNA evidence.

Duquesne Professor John Rago introduced Kirk with an impassioned speech about the injustice that is wrongful convictions.

“Truth and freedom are intimately related values; they are reciprocally necessary, the one being unable to exist without the other,” Rago said. It was hard not to feel strongly about the subject after hearing from someone who felt so strongly about it. But I did not come to truly understand

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Kirk Bloodsworth The case against Kirk rested on a questionable identification, one of the most common factors contributing to today’s wrongful convictions.12 Five individuals thought he might have been the man they saw with the victim prior to her death.13 Two of the witnesses were young children.14 These eye witnesses described the man they saw as tall and skinny, with red hair and a mustache.15 Kirk, at the time, was medium height, bulky, with

blond hair and no mustache.16 Still this was enough to convict him.17 At the time of the trial, Kirk had no criminal record, but the judge sentenced him to death because of the seriousness of the crime.18 Because a judge later ruled that the prosecution had wrongfully withheld evidence about another suspect, Kirk obtained a new trial, at which he received a life sentence.19 Kirk maintained his innocence throughout both trials and continued to try to prove it while in prison.20 While in prison, Kirk read The Blooding21, a book that recounted a murder investigation in Britain where DNA was used much like fingerprints to find the killer.22 After reading it, Kirk believed that if DNA evidence could find the killer it could also exclude the innocent: namely himself.23 Kirk and his lawyer were determined to find the evidence from his trial and have it tested for DNA. Kirk was lucky.24 The judge from his original trial had kept the evidence in his closet.25 If it had been returned to the district attorney, it probably would have been destroyed.26 Through the persistence of his attorney, Kirk was able to have the evidence retested using new DNA analysis. Kirk’s attorney paid the $10,000 testing fee himself.27 The DNA tests showed that Kirk could not have committed the crime, and further FBI tests confirmed the results.28 Kirk was released from prison, but the public opinion would still haunt Kirk.29 The public believed he got off on a loophole.30 They still believed he was a child rapist and murderer.31 It wasn’t until the district attorney found a match for the DNA evidence that Kirk’s name was truly cleared.32 In an ironic twist, it turned out the true murderer was a man who had spent time on the same cell block as Kirk while he was incarcerated.33 The discovery of Kirk’s innocence and his subsequent release was due more to persistence and generous volunteers than to the workings of the criminal justice system.34 Only the fortuitous combination of scientific advances and an attorney’s

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persistence led to Kirk’s release after nine years on death row; this is why Kirk Bloodsworth is one of the strongest advocates for the IPA.35

THE EXTENT OF THE PROBLEM It is being argued by many that the American criminal justice system is failing.36 Professor Rago said it best in his law review article when he wrote, “The intrinsic and moral relationship of truth and freedom in American criminal justice is as apparent as the besieged condition in which we currently find it. It is arguable, perhaps even probable, that the quality of our criminal justice system has never fallen under such an ominous shadow of doubt. For the past decade, in one case after another, conclusive evidence produced by post-conviction deoxyribonucleic acid (DNA) testing has established, beyond all doubt, the tragic reality that we are convicting factually innocent individuals.”37 To date, 183 people have been exonerated based on post-conviction DNA testing.38 Many of these people were on death row.39 The consequence of this is very disturbing: “proof of innocence on death row means that innocents have almost certainly been executed.”40 Statistics on exonerations indicate that there may be a higher incidence of error in capital cases than in other criminal cases.41 Studies reveal a ratio of one exoneration based on evidence of actual innocence for every five to seven executions.42 These numbers demonstrate the serious likelihood that innocent people are put to death under the current system of capital punishment.43 One study found that serious errors occur in almost 70 percent of all trials leading to the death penalty.44 Statistics like these, even taking

into account any possible errors, provide a strong push for innocence reform.

THE INNOCENCE PROTECTION ACT

Statistics like these have prompted others to action. On January 31, 2000, Illinois Governor George Ryan imposed the nation’s first moratorium on executions.45 He cited Illinois’ “shameful record of convicting innocent people and putting them on death row.”46 “During the 23 years since Illinois reinstated capital punishment the state’s courts sentenced 25 men to death and yet it subsequently exonerated and freed more than half of them, 13.”47

“The Innocence Protection Act is a package of criminal justice reforms aimed at reducing the risk that innocent persons may be executed by the State, and ensuring that wrongfully convicted inmates have access to evidence that can establish their innocence.”52

Of the dozen killed, one man is now believed to have been innocent.48 The governor, a believer in capital punishment,

“Three years ago, we (Senators Patrick Leahy, Gordon Smith and Susan Collins, and Congressmen William Delahunt and Ray LaHood) joined together to introduce the Innocence Protection Act, a balanced, bipartisan package of sensible criminal justice reforms aimed at reducing the risk that innocent persons may be executed—and ensuring that inmates who have been wrongfully convicted have access to the evidence that can establish their innocence.”53 “The bill would achieve these goals in two principal ways: first, by ensuring that eligible inmates are not denied access to DNA testing that can establish their innocence; and second, by helping states improve the quality of legal representation in capital cases so that fewer defendants are wrongfully convicted in the first place.”54

stated he could no longer “support a system which, in its administration, has proven so fraught with error, and has come so close to the ultimate nightmare.”49 The day after Governor Ryan issued the moratorium, U.S. Sen. Patrick Leahy announced “he would introduce the first federal legislation to address denials of fundamental fairness in the administration of capital punishment.”50 Some 10 days later, he introduced what would eventually become the Innocence Protection Act.51

The bill is not aimed at death penalty reform or a moratorium on the death penalty.55 “Many of the bill’s cosponsors are supporters of the death penalty. Many others oppose it. But all are united in the belief that a just society cannot condone the execution or wrongful incarceration of the innocent.”56 It is simply a bill to protect the innocent. Nonetheless, “the act establishes a framework for improving the administration of capital punishment and the justice system generally.”57 “It creates a grip in federal law for congressional oversight of state death penalty systems.”58 continued on page 14

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“And most importantly, it represents the first time Congress has recognized flaws in capital punishment and the fallibility of the justice system.”59 The Innocence Protection Act is included in a larger bill called the Justice for All Act of 2004.60 It has been described as “a crafted package of criminal justice reforms aimed at reducing the risk that innocent persons may be executed.”61 “But more importantly, the bill would afford greater access to DNA testing by convicted offenders, and help States improve the quality of legal representation in capital cases.”62 “The IPA would also help the victims of crimes by providing federal funds to eliminate the current backlog of unanalyzed DNA samples in the nation’s crime labs and to improve the capacity of federal, state and local crime labs to conduct DNA analyses.”63 While at its most basic level the IPA seeks to prevent the wrongful execution of innocent individuals, sponsors contend that the use of DNA test results would also benefit the community. As Senator Leahy has noted, every time an innocent person is incarcerated, the real murderer is out free and is able to commit more murders.

When an innocent person is convicted, law enforcement acquires a false sense of closure. The investigation ceases, and the case is considered solved. Meanwhile, to the public’s detriment, the real assailant continues to roam the streets. However, when DNA evidence is used to exonerate an inmate, the testing results are typically entered into the Combined DNA Index System (CODIS), a national database containing DNA profiles from both unsolved crimes and convicted offenders.

Where the submitted DNA matches a profile in the database, law enforcement officers can reduce the threat to the community by apprehending the true offender.64 “The IPA would establish rules and procedures to control applications for post-conviction DNA testing by federal inmates.65 Through these provisions, the IPA seeks to prevent the unnecessary execution of wrongfully convicted individuals, to restore public confidence in the criminal justice system, and to prevent the threat to public safety that exists when

14

violent felons remain at large.”66 In addition, the Act prohibits the destruction of biological evidence without notice to the defendant while she is incarcerated.67 “Furthermore, as a condition of receiving federal funding for DNA-related programs, states are required to adopt procedures comparable to the federal procedures established by the Act.”68 Lastly, states are required to grant defendants access to biological evidence for the purpose of DNA testing.69 “The IPA most importantly sets parameters for the application and orders of postconviction DNA testing for inmates.”70 After a prisoner testifies upon application that he did not commit the federal crime for which he was convicted, the court shall order DNA testing provided that: (A) the evidence is still in existence, and in such a condition that DNA testing may be conducted; (B) the evidence was never previously subjected to any DNA testing, or was not subject to the type of DNA testing that is now requested and that may resolve an issue not resolved by previous testing; (C) the proposed DNA testing uses a scientifically valid technique; (D) the proposed DNA testing has the scientific potential to produce new, noncumulative evidence which is material to the claim of the applicant that the applicant did not commit the crime, and which raises a reasonable probability that the applicant would not have been convicted of (i) the Federal crime of which the applicant was convicted; or (ii) any other offense that a sentencing authority may have relied upon when it sentenced the applicant with respect to the Federal crime either to death or to an enhanced term of imprisonment as a career offender or armed career criminal; and (E) the identity of the perpetrator was or should have been a significant issue in the case.71 “The Act also prohibits the destruction of biological evidence without notice to the defendant while he is incarcerated” and “require[s] states to adopt procedures comparable to federal procedures”, and “require[s] states to grant defendants access

to biological evidence for the purpose of DNA testing”, all as a condition of receiving federal funding.72 The bill passed the US Senate by voice vote on October 9, 2004, and the US House of Representatives on October 6, 2004, in an overwhelming 393-14 vote.73 On Saturday, October 30, 2004, President George W. Bush signed the IPA into law.74 Now all that is left for the IPA to become effective is for the funding to be established.75

ARGUMENTS AGAINST THE IPA One of the most mentioned arguments against the reforms proposed by the IPA is the argument for finality in criminal adjudications.76 As one judge explained in her defense of an opinion denying a wrongfully convicted man a new trial, “We can’t give new trials to everyone who establishes, after conviction, that they might be innocent. We would have no finality in the criminal justice system, and finality is important.”77 This is a common view among judges in a variety of states.78 The Supreme Court of South Dakota explained, “that a judgment in a criminal trial will ‘hold little respect’ if judgments can be continuously reopened when a defendant claims he is innocent and asks that evidence be re-examined.”79 Judges are afraid that convictions will never seem final and that an inmate will believe he always has a chance to change his judgment.80 The theory goes, that when an inmate realizes that his criminal adjudication is final, then it allows the inmate to accept his sentence and begin rehabilitation.81 “The purpose for imprisonment, namely retribution and rehabilitation, will be thwarted if an inmate is instead focusing on appeals and petitions to courts for new trials.”82 The Supreme Court has endorsed the argument for finality as well.83 The court has often stated that finality is important so as to deter criminals, as well as to establish stability in the criminal justice system so imprisonment and punishment are not uncertain and not constantly subject to appeals and new litigation.84 The court has also stated that new trials may not be reliable because of things like witnesses’

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memories not being fresh or witnesses’ whereabouts not being known.85

members are left with the frustration of a failed attempt.98

“Another oft-mentioned argument against post-conviction DNA testing is that DNA evidence is less than conclusive and cannot provide innocence.”86 The theory is that it is incorrect that a non-match between a suspect or defendant’s DNA and the DNA found on the victim means that the suspect is innocent.87 Supporters of this argument claim that while a match between crime scene DNA sample and a suspect’s DNA is conclusive, the opposite, that a non-match between suspect and crime scene DNA points to a suspect’s innocence, is not true.88

The victim can begin to cope with the crime committed against them, if they feel the one who committed it is being punished.99 To learn that someone the victim thought was the criminal is exonerated thrusts the victim back into the very system they thought they had left behind.100

“One Texas judge explained that postconviction DNA test results that excluded an inmate as the donor of the semen found at the crime scene were merely negative evidence.”89 Positive evidence, unlike negative evidence, identifies whom a specific culprit is and has greater weight than negative evidence.90 “The DNA evidence presented could show only that the inmate was not the source of semen found on the victim and was therefore negative evidence because it could not exclude the inmate as the person who committed the rape.”91 The judge compared DNA evidence to fingerprint evidence when explaining that both forms of evidence are negative evidence.92 For example, if a suspect’s fingerprints were found at a crime scene, it implies that the suspect was at that crime scene at some time.93 If the suspect’s fingerprints were not there, it does not prove that the suspect was not at the crime scene and did not commit the crime.94 The argument for finality has also been argued in a different way. Some argue that there must be finality for the victim.95 Exonerations that are a source of triumph for the wrongfully convicted are a clear disappointment for victims and their families.96 The finality and closure a victim gets from adjudication is the first step in the direction of healing.97 Homicide survivors gear up to withstand the long, exhaustive aftermath of homicide, which starts with the reality of the event by a knock on the door or a phone call that forever changes their lives, and extends throughout the criminal justice process.

When the offender is exonerated, family

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“In a general sense, the most common reactions range from outrage to fear to empathy for the person who was wrongfully convicted. Outrage is directed at a system that wrongfully held someone for years and would allow - in the worst cases - someone who murders or rapes to still possibly be free.”101 Exonerations leave many doubts and questions for the victim: “Will time detract from the prosecution pursuing the ‘justice’ victims are seeking? Does the use of DNA in exonerating someone always mean that person was not part of the crime? Could he or she not have left DNA at the scene?”102 It is not that victims want the wrong person to be convicted, but many victims do feel that reforms like the IPA will inject unreasonable delay into a system that is already overwhelmed by delay when the defendant is clearly guilty.103 It is clear that exonerations and issues dealing with wrongful convictions are hard for victims to handle. It upsets what finality they could gain from a conviction and thrusts them back into a situation they believed they were finished with.

CONCLUSIONS Finality in the criminal law is a valid argument with much substance. It is true that without finality an inmate will not begin to rehabilitate because they cannot accept their fate if they believe they can change it at any moment. But as one senator said “deadlines [only] make sense when society has an interest in the finality of the judgment [and] there is no interest in the finality of an incorrect judgment, especially one that would result in the execution of an innocent person.”104 Finality only makes sense when the final judgment is a correct one.105 The day may come when it can be assured only guilty people are convicted; but till that

day finality is not an important enough interest. You cannot deny a man his liberty, freedom, or worse, his life, based on notions of finality in the legal system.

It is hard to justify DNA evidence as negative evidence and compare it to fingerprints. DNA evidence comes in many forms and is one of the most reliable forms of evidence we have. “Even though DNA must be considered in the context of other evidence presented, DNA can avoid many miscarriages of justice that might occur without it.”106 When compared to eyewitness identification, the most commonly used evidence to convict, “DNA is overwhelming evidence of identity.”107 The analogy between DNA and fingerprint evidence may be faulty because DNA testing is, in fact, more accurate than fingerprint testing.108 While both may provide negative forms of evidence, DNA’s accuracy elevates its standing when determining identity.109 Fingerprint evidence, for example, links a person circumstantially to a crime scene or weapon, but DNA evidence has the ability to link the suspect “to the crime itself.”110 In sexual assaults, the fact that semen is found at a crime scene determines what crime has occurred—rape.111 I agree that exonerations have a traumatic effect on victims and victims’ families. The sense of finality a victim needs to feel in order to heal is a very strong interest; as opposed to finality in the criminal justice system. But are we to create a second victim in the interest of the first victim? Because by keeping innocent people in prison, we have made them a victim as well. Kirk Bloodsworth was a young man, with an unlimited future when he was wrongfully convicted. While in prison he was stabbed, beat up, and threatened. He had to become a different person to survive. He was a victim, with a crime committed against him that requires just as much compassion as the parents of the little girl who was killed.

As the old saying goes, “two wrongs don’t make a right.” Creating another victim to protect the first one is by no means “right.”

I believe victims are realizing that, in the end, the IPA is what is needed.

This is illustrated by the two most vocal proponents of the IPA: Kirk Bloodsworth and Debbie Smith.112 Kirk, you know, was continued on page 16

15

wrongfully convicted, but Debbie was a victim.113 She was raped and it took six years to find her attacker114. She was just as adamant that the IPA be passed.115 She understands that the IPA can help all victims when it comes to wrongful convictions.116 Wrongful convictions are a miscarriage of justice that deny a man the rights guaranteed him by the Constitution; his freedom of life, liberty and happiness.

Wrongful executions are on an even worse level. Until the day that it can be guaranteed that only the guilty will be convicted, there cannot be a good argument against wrongful conviction reforms. ú

13

Id. at 91.

14

Id. at 91.

15

Id. at 46.

16

Id. at 46.

17

Id. at 156.

18

Id. at 166.

19 20 21

45

Morton Mintz, #15 Mort Wants to Know: Death Penalty Madness – Shouldn’t the Press Be Asking Hard Questions?, at http://tompaine.com/scontent/3106. html (2000). In his articles, Mr. Mintz was posing questions he felt every candidate for president should be asked because they bore heavily on the public welfare of America.

Id. at 194.

46

Id.

Id. at 194.

47

Id.

Joseph Waumbaugh, The Blooding, (Bantam Books 1989).

48

Id.

49

Id.

22

Junkin, supra note 12 at 235.

50

Id.

23

Id. at 235.

51

Id.

24

Id. at 235.

52

ENDNOTES

25

Id. at 235.

1

26

Id. at 235.

27

Id. at 258.

28

Id. at 258.

Joint Statement, Senators Patrick Leahy, Gordon Smith and Susan Collins, and Congressmen William Delahunt and Ray LaHood (Feb. 4, 2003), at http://leahy.senate.gov/press/200302/ 020403b.html.

53

29

Id. at 259.

Id. at http://leahy.senate.gov/press/ 200302/020403b.html.

30

Id. at 259.

54

Id. at http://leahy.senate.gov/press/ 200302/020403b.html.

55

Id. at http://leahy.senate.gov/press/ 200302/020403b.html.

56

Id. at http://leahy.senate.gov/press/ 200302/020403b.html.

57

Ronald Weich, The Innocence Protection Act Of 2004: A Small Step Forward And A Framework For Larger Reforms, (2005) at http://ccjr.policy.net/proactive/ newsroom/release.vtml?id=39020.

58

Id.

59

Id.

60

Supra Note 5 at http://ccjr.policy. net/cjreform/ipa/index.vtml.

61

Id. at http://ccjr.policy.net/cjreform/ ipa/index.vtml.

62

Id. at http://ccjr.policy.net/cjreform/ ipa/index.vtml.

63

Jennifer L Weiers & Marc R. Shapiro, Note: The Innocence Protection Act: Revised Proposal for Capital Punishment Reform, 6 N.Y.U. J. Legis. & Pub. Pol’y 615, 618 (2003).

2

Judge Learned Hand, United States v.

Garsson, 291 F. 646, 649 (S.D.N.Y. 1923).

The Innocence Project at http://www. innocenceproject.org/case/display_ cases.php?sort=year_exoneration.

3

Id.

31

Id. at 265.

4

Id.

32

Id. at 266.

5

The Justice Project, The Innocence Protection Act at http://ccjr.policy.net/ cjreform/ipa/index.vtml.

33

Id. at 266.

34

Id. at 286.

35

Id. at 286.

36

John T. Rago, “Truth or Consequences” and Post-Conviction DNA Testing: Have you reached Your Verdict?, 107 Dick. L. Rev. 845, 847 (2003).

37

Id at 847.

6

Id.

7

Id.

8

Id.

9

Jean Coleman Blackerby, Life After Death Row: Preventing Wrongful Convictions and Restoring Innocence After Exonerations, 56 Vand. L. Rev. 1179, 1202 (2003).

10 11 12

16

Id. Id. Tim Junkin, Bloodsworth: The True Story of the First Death Row Inmate Exonerated

by DNA 90 (Alonquin Books of Chapel Hill 2004).

38

Supra Note 9 at http://www. innocenceproject.org/case/display_ cases.php?sort=year_exoneration.

39

Id.

40

Supra Note 1 at 1183-1184.

41

Id. at 1185-1186.

42

Id. at 1186.

43

Id. at 1186.

44

Id. at 1186.

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64

Id.

65

Id.

66

S. Rep. No. 107-315, at 7.

67

Note: The Innocence Protection Act: Revised Proposal for Capital Punishment Reform, Supra Note 7 at 616.

Police. He believed that the exoneration of criminal defendants through DNA evidence “perpetrates the myth that because the DNA types found on the victim do not match the suspect, the suspect is innocent.”

88

Supra Note 53 at 1221.

68

Id. at 616.

89

Id at 1224.

69

Id. at 616.

90

Id at 1224.

70

Id. at 616.

91

Id at 1224.

71

Id. at 616-617.

92

Id at 1224.

72

Id. at 617.

93

Id at 1224.

Supra Note 5 at http://ccjr.policy. net/cjreform/ipa/index.vtml.

94

Id at 1224.

95

Dan S. Levey, Wrongfully Convicted: A No-win Situation for the Victim, 52 Drake L. Rev. 695 (2004). “Dan Levey became an advocate for crime victims following the brutal murder of his brother, Howard, in November 1996 in Phoenix, Arizona. Mr. Levey is a former Special Assistant for Victims to the Arizona Attorney General and currently serves as an Advisor for Victims to Arizona Governor Janet Napolitano.

Mr. Levey also is the current National President for Parents of Murdered Children, Inc. and is involved in numerous state and national victim organizations. This Essay is presented from a crime victim’s point of view and it gives the reader a sense of the impact a wrongful conviction can have on a crime victim and what the victim and his or her family may face. Faced with the knowledge that the perpetrator may still be free, balanced with the conflicting feelings of thinking the right person had been convicted, the crime victim must find the strength and courage to understand the justice system is not always fair. However, for the crime victim, he or she has already faced the reality that life is not fair just by the reality of becoming a crime victim.”

73

74

75

76

Id. at http://ccjr.policy.net/cjreform/ ipa/index.vtml.

Id. at http://ccjr.policy.net/cjreform/ ipa/index.vtml.

Id. at http://ccjr.policy.net/cjreform/ ipa/index.vtml.

77

Karen Christian, “And the DNA Shall Set You Free”: Issues Surrounding Post-conviction DNA Evidence and the Pursuit of Innocence, 62 Ohio St. L.J. 1195, 1215 (2001).

78

Id.

79 80

Id. Id.

81

Id.

82

Id.

83

Teague v. Lane, 489 U.S. 288, 309 (1989).

84

Id. at 309. “These underlying considerations of finality find significant and compelling parallels in the criminal context . . . Without finality, the criminal law is deprived of much of its deterrent effect.”

85

McClesky v. Zant, 499 U.S. 467, 491 (1991).

86

Supra Note 53 at 1221.

87

John Juhala, False Exclusions?, 37 Jurimetrics J. 325, 325 (1997). Juhala is assistant director for the Forensic Science Division of the Michigan State

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96

Id. at 696.

97

Id. at 696.

98

Id. at 698.

99

Id. at 697.

100

Id. at 697.

101

Id. at 697.

102

Id. at 697-698.

103

Id. at 698.

104

S. Rep. No. 107-315, at 15.

105

To rebut those arguments of finality, advocates of post-conviction DNA testing claim that a court’s priority should be to assure that innocent people are not imprisoned rather than focusing on practical concerns of finality. Supra Note 71 at 1218.

106

Id. at 1226.

107

Id. at 1226.

108

Id. at 1226.

109

Id. at 1226.

110

Id. at 1226.

111

Id. at 1226.

112

The Associated Press, Senate Panel Delays Vote on DNA Testing, (2004) at http:// www.nytimes.com/aponline/national/ AP-DNA-Testing.html?ex=1095830240 &ei=1&en=2cd6d9bbe24c0ccd.

113

Id.

114

Id.

115

Id.

116

Id.

17

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