Juris Magazine- December, 1976

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Duquesne University School of Law December, 1976 ~

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CAMPAIGN FINANCE REFORM b y Congressman John Dent

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FELONY MURDER: DOES THE PUNISHMENT FIT THE CRIME

by Jeffrey A. Manning

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'"'. TH IRD UNITED NATIONS CONFERENCE j ON THE LAW OF THE SEA

SOME THOUGHTS ON THE FUTURE LAWS OF DEEPSEA MINING

by Penelope Simoes Ferreira

Page 8 OHl ' 1\1. RU'ORDS

THE FIFTH AMENDMENT: A VIEW FROM THE EYE OF THE STORM

by Samuel J. Reich & Mark L. Glosser

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THE REORGANIZAT ION OF THE DISTRICT ATTORNEY'S OFFICE

by Bob Colville & Walter Bunt, Jr.

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emotlam On October 21st, Professor Henry Seney died. The profound shock felt by students and faculty that morning connot be explained as the usual reaction to tragedy; rather, it is an indication of the depth of affection and of respect for a man truly committed to his profession and to the preservation of human rights.

Henry Seney was a quiet man. Seldom was he aroused by ordinary matters. Yet he was quick to laugh, quick to delight in an idea, in the turn of a phrase. And, always, he was moved by any extreme of good, or of evil. At any gross injustice his outrage would well up in him. He would speak out, haltingly, in a sputter - and it was the sputtering of a fuse. His themes were honesty and directness; he rejected compromise with the artificial, the sentimental, the pretentious.

Professor Seney's happiest interest was in the relation between law and literature. He saw, more than most, that law and the imagination must collaborate in the search for 'truth and justice. The legal mind, he felt, needs the nourishment, the inspiration, which only the 'republic of letters' can provide.

And he was a legal scholar. Professor Seney has made important seminal contributions to the theory of criminal responsibility, applying to this sensitive area the sociological insights derived from his studies at the Yale Law School.

To his teaching, he brought the highest standards; and he had the courage to apply them. His grading was tough, but fair. Impatient with the case law system, he condensed decisional law to its essentials and reduced the scope of courses to their common principles. Some interpreted this as a retreat from the rigors of legal analysis, but it was Professor Seney's way of urging his students to go forward and put their minds to their best uses.

It is in this light that we dedicate this issue of Juris to the memory of Professor Henry Seney.

Vol. X No.2 - December, 1976

Jur路s Alumni Carl E. Harvison News Robert L. Garber Layout Earl Metcalf Features Frank Mayer

Editor-in-Chief Thomas R. Kline Associate Edilor Gerald G. DeAngelis

Assistant Editors Bonnie L. Deppenbrock Bernard J. Rabik William J. McGarvey Mark W. Morava

Staff Members: Sandra Alan, Michael Angelini, Karen M. Balaban, Daniel Butler, Gerard Cipriani, William T. Cline, Colette Cox, Janine Fiesta, William Humphries, Charles A. Lenns, Dennis Miller, Susan J. Pearlstein, Vincent J. Restauri, Karyn Rok, Martha W. Riegel, Patrick Ryan, Arnold Schulberg.

Faculty Advisors: Nicholas J. Demas and John J. Sciullo.

JURIS is a student publication of the Duquesne University School of Law. Manuscripts and comments may be addressed to JURIS, Duquesne University School of Law, 600 Forbes Avenue, Pittsburgh, Pennsylvania 15219. Telephone (412) 434-6305.

Copyright 漏 1976, Duquesne University

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D AN'SNOT On October 21, 1976, Joanne Seney lost a husband, Mrs. Henry William Seney of Toledo, Ohio lost a son, the students of the first and third year, classes lost a professor. and the faculty lost a colleague and friend.

Henry Seney was a unique man. It is traditional to view those who trace their lineage to revolutionary times as part of the establishment more concerned about the protection of their privileges than the rights of all people.

Henry Seney was a sixth generation lawyer. Joshua Seney served in the Continental Congress, Henry Seney's grandfather was a judge in Ohio, Henry Seney's father was a managing partner of one of the major law firms in Toledo, Ohio - Henry Seney was a patrician.

I am certain it is hard for Professor Seney's students to visualize him as a patrician. His down路to路earth and caustic nature belied his heritage. His challenge to the traditional ideas of criminal justice and conflicts represented a new approach to these highly important areas. Particularly, his ideas in the area of criminal justice we're not only imaginative but revolutionary. Criminal law scholars such as Professor Jerome Hall cited Professor Seney's works. I am confident that his approach both to criminal law in which he was a recognized scholar, and conflicts, where he projected an unusual intellectual discipline into his analysis, will live long after his death.

Professor Seney was a creative man. His course on Law and Literature represented that kind of critical thinking about our legal system that is unusual on a law faculty . So often students are concerned with the traditional approach to the study of law. After all, they are here to become lawyers.

We of the faculty know that while we revere tradition, the law can only grow through creativity and imagination making the mind work to join the seemingly unrelated. A fresh catalytic approach to old ideas - that is what Henry Seney represented. What a loss.

Campaign Finance Reform

by Congressman John Dent

In the Spring of 1971, against a background of rising criticism of existing Federal law regulating election campaigns, the Congress began work on election reform legislation_ The bulk of the existing Federal law on the topic at that time was embodied in the Federal Corrupt Practices Act of 1925 which included a series of supplemental provisionsadded in the 1940's_ With the majority of the Federal law being anywhere from thirty to forty years old, therefore, it had been constantly assailed by Members of Congress, the press, and civic organizations as being ineffective, outdated, and inadequate to cope with the electoral dynamics of modern election campaigns_ In short, it was long past time for Congress to direct its attention to election reform. After a period of many months of hearings, mark-ups, consideration, debate and compromise, the Congress produced legislation which abolished the inordinately low spending limitations ($25,000 for Senator, $5,000 for Representative) which existed under the old Corrupt Practices Act and, more importantly, provided for the first time for full and complete disclosure by candidates of contributions and expenditures. The conduct of election campaigns, the spawning ground of popular cynicism and distrust, was to be made open and available for perusal by the press and public alike. A revolutionary step had been taken.

Having enacted a major revision of campaign laws for the first time in decades, it was inconceivable at that point that a further, more drastic revision would be undertaken within less than two years. However, the sequence of historical and political events which was to spark the 1974 Federal Election Campaign Act was even more unbelievable. When signed into law on February 7, 1972, the Federal Election Campaign Act of 1971 provided that the provisions of the new law not be implemented until sixty days after enactment. This triggered a mad scramble among political fund 路 raisers to solicit and gather large and still legal, nonreportable contributions. This happenstance, as well as the failure of the 1972 Act to impose any limitations on contributions and expenditures, left the political arena still fully open and susceptible to the pernicious effects of huge sums of money. Dirty tricks, political espionage, and the buying of political favors, incensed the public to the point where further reform was necessary. The hue and cry for reform in the press, and the volume and intensity of communications to Congressional offices (my own office received as many as five hundred pieces of mail urging elec-

tion reform during this period), made the public's sentiments most clear. Something had to be done. Accordingly, in the Fall of 1973 the Subcommittee on Elections began a series of public hearings aimed at sampling the best of public and private opinions on the best course to take toward effective and equitable reform. Following the hearings, the Committee on House Administration over a period of months drafted and redrafted its version of the 1974 campaign reform law.

The 1974 Federal Election Campaign ACt Amendments encompassed four essential reforms: First was the simplification and unification of a variety of reporting requirements. The strictures on reporting, embodied in the 1971 Act, had been confusing to both candidates and public alike. For example, there had been no requirement for the consolidation of all contribution and expenditure reports under one centralized committee. This allowed any candidate to effectively disguise the magnitude of his contributions and expenditures. A candidate could simply set up a variety of committees, all raising and spending money toward his candidacy, which, although legally reported, would be extremely difficult to ferret out of the mass of reports available to the public. The bill therefore established the concept of a principal campaign committee through which all funds contrilbuted and expended for a single candidacy must be reported.

The second reform was the imposition of contribution and expenditure limitations. The importance of contribution limitations was to try to bring some balance into the political arena in terms of the relative impact and weight of each citizen's participation in the political arena. The question was simply, should the wealthy by virtue of their ability to con tribute large sums of money, be ablle to inordinately affect the political arena? Should a W. Clement Stone be permitted to give over $2 million to the Nixon campaign, or should a Stewart Mott be permitted to give over $1 million to the McGovern campaign? It was the

Editor's note: John Dent is a Congressmtln from the 21st District of Pennsylvania, consisting of Westmoreland County and part of Allegheny County. He was recently elected to his tenth term, receiping sixty percent of the pote. Dent serues as Chairman of the Elections Subcommittee of the Committee on House Administration.

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Committee's view, supported by the Congress, that such monetary influence was wrong. There were established limits not only on what one person could give per candidate, but on what one contributor may expend, in the aggregate, eluring one election campaign year. Among the Members of the Committee there was a degree of difference on what the levels should be, but a near unanimity regarding the necessity of such restrictions.

With regard to the imposition of expenditure limitations there evolved a great difference of opinion. Based upon figures made available by the candidate reports filed in the 1972 election, it was my feeling that most of the figures discussed as proper limits on expenditures were much too high. The Committee began with an expenditure limit figure of $60,000 for each race for the House of Representatives, and a formula of 5 cents multiplied by the population of each state for spending in a Senate race. The average amount of money spent by all candidates in the 1972 election was 'less than $49,000. Fewer than 30 percent of all candidates spent in excess of $60,000. These figures I felt were excessive because much election spending escalates by retributive spending. Candidate A puts up a large number of billboards so his opponent Candidate B feels he must do the same in order not to lose ground. If both candidates are restricted to the same spending ceiling then the impact of spending on the election will be determined by how well the sum is spent. An effective campaign with proper exposition of the issues can be done without the wasteful scattershot approach of massive spending which actually makes money the most important factor.

This potential for buying elections is what I so vehemently opposed. Accordingly, I offered, both in the Committee and on the House floor, amendments which would have decreased the spending limitations in the bill to a more realistic figure. I offered, in conjunction with Congressman Mathis of Georgia, the sum of $42,500 which at the time was the salary which a Member of Congress was paid per year. It was simply my feeling that the American people were greatly disenchanted with huge political expenditures.

If a candidate is willing to spend two times or three times as much money to get elected as the office pays, the people cannot help but cynically wonder what else goes with the job. Excess spending is simply not conducive to the fostering of faith and trust in elected officials.

The Committee finally settled, with respect to races for seats in the House of Representatives, on the figure of $75,000. This figure, which was in excess of what was spent by more than 80 percent of all candidates in the 1972 election, was further inflated by the inclusion of a provision which allowed up to 20 percent of the expenditure limitation to be excluded for the purposes of raising funds. This made the actual spending limit $90,000, and that much further out of line with reasonableness. The failure of the Congress to curb the presence of large sums of money in elections by enacting tighter spending limits was perhaps the greatest shortcoming of the legislation.

The third essential element of the legislation was the establishment of a board of s upervisory officers, embodied in the Federal Election Commission, which would oversee the conduct of election campaigns and provide for evenhanded and fair enforcement of the campaign laws. Although most of the commentary from reform advocates and the media hailed the establishment of this body as the most important and far-reaching reform in the bill, it was my opinion that the establishment of the Federal Election Commission contributed to the conduct of election campaigns more in the manner of style than of substance. I was frankly not convinced of the necessity for establishing such a Commission - a new Federal bureaucracy - when the job which it was charged with doing was being most capably handled by the existing enforcement agencies. The Clerk of the House of Representatives for example, which exercised oversight over the elections for the House of Representatives, had done an outstanding job of policing its elections and had cited as many as 5,000 apparent violations which it had turned over to the Department of Justice for appropriate action. However, Justice failed to ever take any action. It was therefore not a failure on the part of existing

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enforcement bodies (the Clerk of the House, Secretary of the Senate, and the General Accounting Office) which produced charges of lack of enforcement, but a failure in the Execu tive branch.

Despite the near-universal approbation which greeted the concept of the Commission, the debate over its actual form and substance was among the most heated of the entire deliberation process. Not only was the manner of appointment to the Commission hotly debated, but the size and powers of this politically sensitive body were the topic of many hours of Conference Committee discussions. In the climate of the Judiciary Committee impeachment hearings, the Democratic CongreSSional majority was unwilling to yield full appointment powers to a Chief Executive whose actions had not only spawned most of the election reform clamor but who also was of the opposing political party.

For similar reasons the Conference Committee felt constrained to keep the membership of the Commission to an even number, in order that one party would not have a built-in majority for deciding critical political questions.

The final reform of the 1974 legislation was the institution of the revolutionary concept of public financing of Presidential elections. This idea intruded into the House version of the bill largely as a concession to the wellorchestrated outcries generated by such public interest groups as Common Cause. It was not, initially, the feeling of the Committee that public financing was an essential or even prudent concept to provide effective reform . Despite the common popular view that such a system would be effective in eliminating the types of abuses which characterized the 1972 Nixon campaign, there was no data to support such an opinion. It is my contention that it is just as easy to improperly use public money as it is to misuse money raised privately. In addition, there is some question as to the propriety of public tax money being spent on politics.

Public financing was passed by the Committee on House Administration, largely in its present form, for a variety of reasons. Chief among these were the prospect of a major impasse in an expected Conference Committee with the Senate (the Senate having already voted on three separate occasions for far more sweeping public financing proposals, including provisions for Congressional public financing); and, the desire to accede to the requests of various conscientious reform-minded Members of the House who thought the idea deserved at least a trial run. I fully believe that the House of Representatives would have rejected this proposition except for the hysterical climate of the period which culminated in the resignation of President Nixon. As a Member of the Committee on House Administration I fought long and hard to have public financing eliminated as wasteful and ill-conceived.

The decision rendered by the Supreme Court with regard to the Federal Election Campaign Act Amendments of 1974 (Buckley v. Valeo) was pernicious to the intent of Congress in a number of ways. Yet, despite the Constitutional setbacks which were dealt to the legislation it is my opinion that only a little damage was done to the concept of the political arena which was envisioned by the framers of the legislation. First of all, the variety of disclosure provisions were fully upheld by the Court. This maintenance of the provisions of the 1972 Act with its UI74 extensions ensures that the public's ability to know what transpires in an election campaign will remain intact. At any rate, these provisions never figured to have an impact on a political race to any extent greater than the nuisance and expense involved in bookkeeping and accounting services. Since all candidates are charged with such duties it could hardly be argued reasonably that such requirements favor one party over another or one type of candidate over another.

Contribution limitations were upheld by the Court. It was gratifying to me personally, in line with my own personal crusade against the presence of big money in election campaigns, to accept this rendering. This is perhaps the most important standing provision of the legislation in the sense of eliminating the presence of "fat cats" and big monied interests from the political realm. It cannot help

but restore some public faith in the electoral process as people realize that even the appearance of buying political influence is sharply curtailed if not fully eliminated. This provision may make the raising of funds more difficult than it has been in past elections, but in keeping with my beliefs in the non-necessity of large sums of money in running effective election campaigns, I view this as a benefit. The country has already seen the manner in which these contribution limitations, coupled with the matching funds concept in the public financing section of the legislation, has opened up the Presidential primary contest to much wider participation. Without the new restrictions embodied in the law, the likelihood is that an early frontrunner, as has often happened in the past, would have been able to corner the bulk of the big political contributions and endorsements, and: the results of the primary season could have been markedly different for having been less open. For example, an early dark horse, such as Jimmy Carter, could have been eliminated in the early primaries by a better known big spender. Going further , the greater number of Presidential aspirants, spawned largely by the matching funds concept, certainly contributed to the diffusion and fragmentation of the vote which allowed Carter in a number of instances to win narrow plurality victories.

The public financing proviSions were upheld as not violating either the First or the Fifth Amendment.

Although not personally disposed to be supportive of the concept of public financing (based largely upon my belief that the expenditure of tax dollars on politics is noxious and totally contrary to the feelings of the majority of the people of this country) I find the Court's sustention of the spending limits imposed in the public financing section making them severable from the invalidation of spending limitations otherwise to be a blessing. The curb on spending in Presidential elections, although the stipulated figures are still too high for my personal tastes, represents a Significant improvement over the incredible sums spent by both parties in the last Presidential contest. We have already seen the impact of this restriction, in that both major party candidates felt constrained by the new limits. The limits were certainly a factor in their decisions to use televised campaign debates as a method of promoting their candidacies.

The nullification of the ability of the Federal Election Commission to carry ou t its legislatively-assigned functions had only a temporary impact on the electoral process. The Commission's inability to certify and approve matching funds for Presidential aspirants during the primaries created a furor and a demand for reconstitution of the Commission in line with the dicta tes of the Appointments Clause (Article II, Sec. 2, CI. 2). However, aside from that task, which could as easily have been assigned to another agency, their was little substantive import in the Court's decision on this topic. All that it really represented was a refutation by the Court of the attempt by the Legislative Branch to usurp certain prerogatives of the Executive. Though this interplay is certainly most significant in the context of Constitutional separation of powers, its import and impact on the practicalities of conducting an election campaign is virtually nil. As was stated previously herein, it does not really matter in the conduct of a campaign who or what the enforcement body is. The creation of the Federal Election Commission was a concession to certain groups and was far more form than substance. When you consider that the reconstitution of the Commission included the reappointment of five of the six original Commissioners, the Court's decision did little more than produce a ten week hiatus in the official actions of the Commission.

The only facet of Buckley u. Valeo which I feel does significant damage was the abolition of the expenditure limitations. The abolition of these limits on official cam-

paign expenditures for a candidate and related supporting committees is not as significant as it could have been because the contribution limitations were maintained .

Certainly, some candidates will still be able to raise exorbitant sums within the limits, and this is not desirable in terms of quelling public cynicism. Nevertheless, the retention of the contribution limitations should curb to a considerable degree the effects of big money in elections.

With respect to the Court's decision concerning the abolition of so-called independent expenditures , I find myself fully in agreement with Mr . Justice White, who in his dissent in Buckley stated : ' It would make little sense to me, and apparently made none to Congress, to limit the amounts an individual may give to a candidate or spend with his approval bu t fail to limit the amounts that could be spent on his behalf.

The meaning and logic inherent in this statement is so clear that it almost obviates the need for further expansion.

In the political realm where dollars, particularly large amounts, can mean votes, there is a necessity to place some limitation upon the influence which wealthy individuals may exercise. A wealthy individual is capable of literally buying a political arena and office by virtually monopolizing, or at least overwhelming , the instruments of political exposition. There is no equity, no equality of rights between such a wealthy individual and the majority of ordinary citizens who spend their time , efforts, and hard-earned dollars just ensuring a roof over their heads and food in their stomachs. It was most disconcerting to have the majority of the Court fail to recognize these facts.

Similar equity problems exist in the Court's abolition of the expenditure limits placed upon what a candidate and his immediate family may spend. In certain areas and in certain districts there is a limit to what realistically can be raised by political candidates. It is a figure which will vary to only a small degree regardless of the candidates. When a wealthy individual enters into such a situation the political balance and the will of the people could easily be distorted or subverted by the use of large sums of money.

In the overall sense it is difficult to assess what impact the 1974 Federal Election Campaign Act, with its 1976 revisions, had on this year's election. In my own individual case, other than the necessity to be mindful of a score of new technical provisions, there were no changes in the way I ran my campaign. Never having been the recipient of overly large campaign contributions, and not having access to unlimited family wealth, the restrictions of the law and the Court ruling did not even affect me. I personally feel that this situation applied as well in the majority of other cases. Money may have been a little harder to come by for some of the perennial big spenders, but most managed to get what they needed to campaign effectively .

The only major change which I hope the new law will effectuate is in the realm of the public's perception of the conduct of politicians and political campaigns. As a participant in the political arena for the better part of my life, I find it insulting and exasperating to be constantly told by some reformers and the media that the people have a low opinion of elected officials; that the people think politicians are corrupt. Such perceptions, based upon hundredyear-old stereotypes and a few current-day isolated instances of misconduct, have been grosslyou t of line and unfair to the majority of hard-working, public-minded officials. With the new law and an independently run enforcement body, perhaps the overall rectitude of the electoral process can be brought to Hght. Perhaps, a new-found faith in the institutions of public life may arise and create a greater level of interest and participation in government from the American people.

8 Presidential Election .... Do you wish to designate $1 of your taxes lor this fund?

Campaign Fund . ". If joint return, does your spouse wish to designate $11 ,

Nolr. It JOU chee. Ih. "Yu" bOI(II) it will nol IncrtlS. JOUr t.. or nduc. JOur r.fund.

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by: Jeffrey A. Manning I.

In the origins of English law all felonies were punishable by hanging. These included burglaries, robberies, rapes, sodomies, arsons, and horse thefts. Chief among these, considered the most heinous of all crimes, was murder.

As society and law evolved, most felonies became noncapital offenses, and homicides developed "degrees" of culpability, so that, by the beginning of the twentieth century, only murder of the first degree carried a mandatory penalty. In 1925, Pennsylvania adopted the "split verdict" statute, giving to the jury the right to set the penalty for first degree murder at death or life imprisonment.

First degree murder, at common law, and by statute, encompassed two types of offenses, (a) the willful, deliberate and premeditated killing; and, (b) the felony murder.

Under the "felony murder rule ," if a death occurred while a felony was being committed, the felon and all his accomplices were held for murder in the first degree.

This law has changed only slightly from its origin to modern times. The number of felonies upon which felony murder lies, has been reduced to the six most serious and violent. They are robbery, rape, deviate sexual intercourse by force, arson, burglary or kidnapping. Additionally, the cases of Commonwealth v. Redline, etc. removed from the felons liability for any death resulting from the physical act of a non-conspirator, or the death of a co-felon. Therefrom, if a police officer shot a bystander or a co-felon, the conspirators could not become defendants to a felony. murder charge.

Other than these limitations, the "felony murder rule" has remained unchanged for centuries. As a rule of law, felony murder is a legal fiction which, stated simply, means: If an individual intends to commit a felony, and in the course of committing, attempting, or fleeing from the commission of that felony, he causes the death of another person, he is liable for the death as if he had intended the killing. Secondarily, the "rule" means: where two or more people conspire to commit a felony, and in the attempt, commission, or flight from the crime, one felon causes the death of another person, all perpetrators are equally liable on a charge of felony murder.

Our present murder statute provides that felony murder constitutes murder in the second degree, carrying a mandatory life sentence, with the felony itself carrying a discretionary 10 to 20 year sentence. A person convicted of felony murder would therefore serve a life term whether he physically did the act causing death or not.

There has been much discussion in our courts as to whether the "shooter," or the felon whose hand caused the death can be guilty of the felony and of murder in the first degree. It is conceivable that within the felonious intent a homicidal intent may occur, and the actor may be guilty of the felony and of a willful, deliberate and premeditated murder, subjecting him to conviction of the higher degree and the possible imposition of the death penalty.

Felony murder is a heinous crime, and for that reason carries a most severe PElnalty. Whether the penalty is de· signed to punish , deter , or both, its severity matches only the viciousness of the crime and society's desire to protect itself from exceptional violence.

Of the homicides com mitted in Pennsylvania, roughly one out of eight is a felony murder. Of the felony murders in Allegheny County , better than 85% involve the felony of robbery. Statistics show that most armed robbers are graduate petty criminals, and many fe lony murders are committed by graduate felons. There is a great deal of social and cultural difference between the average murderer, who shoots his wife, or stabs his friend in a tavern argument, and the individual who uses a firearm to frighten and steal, and in the process takes a life. Practically, there is no more vicious criminal than the felony murderer.

II. With the law and the violence of the crime in mind , it is necessary now to look at the facts. Another statistic is important to note : less than half of the defendan ts charged with felony murder actually committed the physical act causing the death .

Prior to October 7, 1976, every defendant charged with murder had an absolute right to a separate trial from all others charged with the same offense . This mean t that three robbers, one driving the "getaway" car, one holding a weapon and taking money, and the third holding a weapon and taking a life were entitled to separate trials.

On a factual examination, applying contempo rary moral standards, it is usually contended that the shooting felon is most culpable and the getaway driver least culpable. The law, however, deals with all equally, each being subject to the same prosecution and penalty.

The practical application of the "rule", therefore becomes difficult: difficult for the jury, the prosecution, and the defense. The problem lies not in cases involving a single actor, but those of multiple defendants. In the recent past , juries have had continuing difficulty convicting a getaway driver of the same penalty carrying offenses as the gunman, particularly since the statute requires that the jury be informed of the penalties fo r murder. (Act 46 of 1974).

Although the Pennsylvania Supreme Court has upheld " inconsistent" verdicts (e.g. guilty-robbery , guilty-voluntary manslaughter), these results are incongruous and indicate the juries consideration of factors other than strict app lication of the law. The yough, lack of maturity, lack of prior criminal activity, are all part of an "inconsistent" verdict.

The elements of sympathy, pity, and compassion often enter into the verdict to reduce felony murder to a lesser and inconsistent degree of homicide. But often, the lesser verdict can be blamed on the "weakness" of the Common· wealth's case and the factual degree of the defendant's

Editor's Note: Jeffrey Manning graduated {rom Dickinson College in 1969 and (rom Duquesne University School of Law in 1972. For the past three years he acted as a chief homicide prosecutor for the Allegheny County District Attorney. Recently he was appointed Assistant United Slllt€$ Attorney for the Western District of Pennsylvania.

involvement in the felony. That is not to say that justice is not done, but that the full effect of the enacted law is not enforced. Some glaring examples of this problem are these: 1) In November, 1975, three men robbed a used car dealer, and as he attempted to flee, one of the three shot him in the back with a .44 magnum, a wound from which he did not recover. The three were arrested and tried by separate juries. Two, one of whom was the shooter, were convicted of felony murder and robbery. The third, against whom the Commonwealth had its weakest case, and the only one of the three with no prior record, was convicted of third degree murder and robbery; 2) Three individuals were indicted for murder and robbery of a drug dealer in 1971.

Two were arrested and tried together and convicted of felony murder and robbery. Neither was the "shooter".

Some time later, the third man, who killed the victim with a single shotgun blast, was convicted of voluntary man路 slaughter; 3) In October, 1975, a security guard was gunned down in the attempted robbery of a liquor store. Four men were arrested. One entered a general plea, and the court set the degree at felony murder (second degree). The other three were each tried by separate juries. One was convicted of felony murder. The remaining two were convicted of third degree. Of the remaining two, one was the shooter.

The felony murder doctrine not only creates problems for juries, but also for attorneys on both sides. Many homicide cases proceed non路jury or on a general plea of guilty . This is not true of felony-murder cases. A defense attorney can hardly be expected to recommend that his client enter a general plea knowing that the only appropriate degree of guilt means a mandatory life sentence.

Nor can he recommend a trial without jury where his only defenses may be sympathy, pity, or an obtuse type of defense that laymen would find acceptable, but a judge would not.

The District Attorney, while being able to negotiate a plea of degree and sentence based on the facts and merits of his case, is hard pressed to justify a plea-bargain to a lesser degree of murder than second degree . He cannot call felony murder, voluntary manslaughter, or say a principal is an accessory after the fact in order to reduce the lawful penalty. To do so, he must ignore the law or torture the facts. This is not to say; that felony murder cases are never plea bargained. In order to obtain a conviction, or testimony, the District Attorney may agree to a disposition less than felony murder. But it still places him in a position of agreeing to a plea that is inconsistent with the law of the Commonwealth.

The problem of present day application of the felony murder doctrine has distressed not only juries and attorneys, but legal theorists and jurists, because the inconsistent, non-felony murder verdict has sharply increased in felony murder cases in the past ten years.

III. There is little doubt that the designed intent of the rule is to deter not only the commission of serious felonies, but the use of weapons, force and violence in their perpetration. There is also little doubt that the law, as presently structured, has a blanket effect on all those involved in the death producing felony, despite their actual degree of culpability.

Several solutions have been proposed. Foremost among these was the proposition eliminating the absolute right to severance in homicide cases. As of October 7, 1976, the right to sever is no longer absolute and the Commonwealth has a right to joinder with the consent of the court (Act 231 of 1976).

In the future, on motion of the District Attorney, the court may rule that co-felons shall be tried together, the jury rendering a verdict on each. In a time when the Appellate Courts are broadening the defendant's rights to sever, this law may be practically inapplicable. And if applied, what will be its effect? The problem with joint trial is a double-edged sword. The jury might acquit, or reduce the degree for an otherwise guilty defendant, being influenced by the innocence or lack of evidence against an

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accomplice. On the other hand, they could conceivably convict the innocent due to the heinous nature of the crime, and the obvious guilt of a co-conspirator. Or would the discerning jury find the shooter guilty of felony murder, the immediate accomplice guilty of third degree murder, and the getaway car driver guilty of voluntary manslaughter? I suggest the latter is the most probable result, and indicates that the blanket effect of the felony murder rule may no longer be appropriate.

The Pennsylvania Crimes Code provides for eight different degrees of assault, from harrassment through causing serious bodily injury to a police officer making a lawful arrest. But only one grade of crime exists where a felony is committed and a death occurs - murder in the second degree, mandatory life imprisonment. The Crimes Code provides for five degrees of theft, summary through felony, and five degrees of homicide, but only one degree of felony murder . The death need not be intentional or even caused by the physical act of the defendant for him to be subjected to a penalty otherwise reserved only for a willful, deliberate and premeditated murder, plus a possible consecutive 10 to 20 year sentence for the felony.

Could multiple felony murder cases be alleged and prosecuted on the basis of the degree of factual culpability of the individual defendant? Yes. Each defendant should be treated equally in the culpability of the instant felony. The present rules of accomplice, principal and accessory should continue to be applied to the felony, and the grading of culpability for the death could then be based on: 1) participation in the felony; and 2) the physical act causing death.

For exampLe : Felony-murder "A:" In the perpetration of a felony, the actor caused by his act the death of another.

Jury to set penalty at death or mandatory life imprisonment based on aggravating circumstances, etc.

Felony-murder "B :" The actor participated in the perpetration of a felony, which resulted in the death of another through the act of his accomplice, and the actor a) assaulled another person; b) carried or used in any manner, a deadly weapon; or, c) willfully or recklessly engaged in conduct causing or risking serious bodily injury or death.

Maximum sentence of life imprisonment.

Mandatory minimum of 10 years.

Felony-murder "C:" The actor participated in the perpetration of a felony which resulted in the death of another.

Maximum sentence of 20 years.

Mandatory minimum sentence of five years.

Using my first hypothetical of the three robbers, the gunman would be liable for felony-murder "A," mandatory life (or Murder One if his act were intentional); the second armed man, who did not shoot, would be liable for felonymurder "B," a 10 year minimum and a possible life maximum, which could be set by the court, or negotiated on a plea; and, the getaway driver would be liable for felony-murder "C," with a minimum of 5 years and a maximum of 20, discretionary with the cO\lrt or subject to plea negotiation. Juries could of course, reduce the degree of the allegation, but in each case would be presented with law based on actuaL cuLpability. The jury would know that the punishment fits the culpability in the crime.

This is not a proposal for legislative action, but merely a suggestion of how the courts could be relieved of "inconsistent" verdicts and the jury given more room within which to Legally determine an individual's culpability in a crime based on his "participation".

The felony murder doctrine is a legal fiction, and recent jury verdicts have indicated its demise is overdue. As in narcotics violations, thefts, or assaults, minimal involvement should garner a lesser penalty, while maximum involvement should earn a maximum penalty. Let the punishment really fit the crime.

7

I

Some Thoughts On The Future Law of Deepsea Mining by: Penelope Simoes Ferreira On September 17, 1976, the Third United Nations Conference on the Law of the Sea (LOS-3) concluded its fifth session, which was devoted to discussion of the Revised Single Negotiating Text' produced by the Chairmen of the three Committees (dealing respectively with the deep seabed, the areas under national jurisdiction and the high seas, and scientific research and environment) on May 6.

Much progress has been made and broad agreement reached in matters of substance discussed in Committees II and Ill, including a Territorial Sea limit of 12 nautical miles with rights of transit through straits, and coastal state rights to the resources of a 200-mile Economic Zone and of the Continental Margin. However, Committee I, dealing with the Deep Seabed Area beyond national jurisdiction, has reached an "impasse", in the words of its Chairman, Mr. Paul Engo! The impasse centers around the system of exploitation of the resources of the seabed and subsoil and, in particular, the reconciliation of two basic approaches: a guaranteed permanent or long-term role in seabed mineral exploitation for States and their nationals, or a role for them subject to the control and on conditions negotiated by the proposed International Seabed Authority and in competition with exploitation by the proposed international mining company, the Enterprise.

The underlying reasons for the failure of the delegations to reconcile their divergent views on the system of exploitation are fairly clear. The seabed contains two main revenue producing resources: hydrocarbons and manganese nodules.

While the potential of the subsoil is at p'resent unknown, although estimates of recoverable offshore oil beyond 200 miles seaward range from 1% to 5%,3 the situation with regard to the manganese nodules is quite different. These nodules, containing 24% manganese and significant quantities of nickel, cobalt, copper and other minerals, are strewn on the seabeds of the world's great oceans in vast deposits, and new nodules are constantly being formed at the rate of 10 million tons annually.' All of these metals are essential to modern industry and, furthermore, the industrialized States are largely deficient in domestic supplies and import the great bulk of their requirements.

Manganese, essential to the production of sound steel, is imported by the U.S., Western Europe and Japan from Africa, Australia, India and Latin America. Cobalt, vital in the production of jet engine and space-age alloys and useful in making magnets, is imported by the U.S., France and the U.K. from Zaire and Zambia. The U.S. imports virtually 100% of its needs in manganese and cobalt. Nickel, used in the production of stainless steel, is imported from Canada - the U.S. supplies only 30% of its needs domestically.

Copper is used in the electrical, construction and chemical industries and about 70% of the world supply comes from 1. Doc.A/CONF.62/W.P.8/Rev.l, in Third U.N. Conference on the

Law of the Sea , Vol.V. pp. 125-150., (6 May, 1976).

2. Report of the Chairman of the First Committee on the Work of the Committee at the Fifth Session. A/CONF.62/L.16. 16 September, 1976 . Hereafter "Chairman's Report".

3. National Petroleum Council, Ocean Petroleum Resources 4, (July 4, 1974) rept. in Chaney, "The Equitable Sharing of Reven.ues from Seabed Mining", in Policy Issues In Ocean Law. Washmgton, D.C.: Am.Soc.Int'l Law, 1975, 53-119 at 68.

4. Forbes, May 1,1976, p.34.

8

Zambia, Zaire, Chile and Peru, the four members of CIPAC, the Council of Copper-Exporting Countries which pursues aggressive price-support and increase policies; Europe and Japan are large importers, while the U.S. is self-sufficient in a low-grade, high-extraction-cost ore. s The technology for the recovery and processing of the minerals in the deepsea nodules has been developed at a cost of over $200 million by U.S. companies such as Kennecott, Deep Sea Ventures, U.S. Steel and Lockheed, and the Canadian International Nickel, and these enterprises have recently formed three international consortia with British, Belgian, German and Japanese companies in order to proceed with the commercial exploitation of these resources. However, they insist that in order to secure the investment necessary to finance such exploitation, it is essential that they have guaranteed access to the resource, free from the absolute control of an international authority which, composed of all the nations of the world, would clearly be dominated by the developing States, numbering 117 or so out of 150; they also require some security of investment, bearing in mind the huge costs involved: $1,500 - $4,000 per day in the prospecting stage alone, rising to $5,000 a day when exploration begins in earnest. 6 It is obvious, too, that the industrialized States, concerned to reduce their balance of payments deficits (imports to the United States amounted to almost $1 billion in 1975)7 and, in particular, to secure supplies of these vital raw materials and reduce their dependence on foreign sources, have little faith in the efficacy of a developing-State dominated Au thority. In this connection it is significant that the recent declaration by Secretary Kissinger that the U.S. Government would support the financing of the Enterprise so as to make it financially and operationally viable almost concurrently with other mining operators, and would agree to the systematic transfer to technology to ensure the equalization of the present advantage held by the industrial States, was made expressly conditional on general acceptance of the principle of permanent, parallel access and operations by States and private companies with the Enterprise. 8 The opposite view is held by the developing countries, known as the Group of 77, although they now number 117 5. Charles F. Park, Earthbound: Mine.-als, Energy and Man's Future. San Francisco: Freeman, Cooper, 1975, pp.70-76, 99-103.

6. Senate Report on the Deep S e abed Hard Minerals Act, S-713, Apr. 14, 1976, p.8.

7. Ibid, p.6 .

8. Chairman's Report, pA.

Editor's Note: Penelope Simoes Ferreira is an Assistant Visiting Adjunct Professor in the School of Law and Institute of African Affairs at Duquesne University, teaching African Custo mary Law and Modern African Legal Systems. She earned law degrees at both the University of London and the University of Cambridge, England, and holds a Diploma in International Law fro m Ca mbridge.

member States of the United Nations. Insisting on the continued vitality of the principle that the seabed and its resources are the " common heritage of mankind,"9 and therefore not subject to exclusive exploitation by anyone nation or group of nations, and gripped by the very real fear that the developing world was being caught in a relentless downward spiral of chronic poverty and underdevelopment, these States see a strong International Authority as essential. In their view, the existence of such an Authority with control over mining operations, together with a viable operating Enterprise, is the only way to offset the monopoly likely to be created by the private companies, and to secure to the international community a share in the wealth generated, on the basis of equality, and not charity. Their reluctance to allow the Enterprise to be given a legal status merely equal, and not superior, to that of private companies, stems from the economic and practical reality that , given the existing financial, technological and managerial advantage enjoyed by the companies, the Enterprise will be relegated to a position of permanent inferiority.' 0 It is felt that a strong Authority is needed "for the very reason that it will be the instrument of all mankind . . . [and] a viable operational arm of the Authority, which is the Enterprise, is imperative if the strength of the Authority is not to depend only on the uncertain benevolence of a single State or a group of today's wealthier States," in the words of the Committee Chairman, Mr. Engo. He concludes: "No one now seriously imagines that a consensus can emerge without this foundation.'" , As it emerged from the Spring session of the Conference in May, the Revised Single Negotiating Text reflected the concerns and proposals of the Group of 77 rather than those of the industrialized States and their nationals, although some concessions had been made by the former moving away from their original insistance on absolute control by the Authority and its exclusive right to set conditions for exploitation. The RSNT still allows the Authority control of operations in the area: its Council is empowered to approve the formal written plans of work that must be submitted by prospective operators and that are the essential pre-requisites of a formal contract of exploitation with exclusive access, and every such contract is to ensure control by the Authority at all stages of operations.' 2 Contracting companies may also be required to maintain production during the contractual period;' l as the costs of extraction are largely unknown and might prove extremely high in certain areas, this possibility is viewed by the mining industry with alarm. In sum, the effect of these provisions is to give the Authority power to deny access to private companies, or to attach conditions to exploitation contracts so financially onerous as to exclude them in fact.

Such extensive powers in the Authority are simply not acceptable to the industrialized States, and when the RSNT was discussed in Committee I this summer a deadlock resulted. Since it was established in the early days of the law of the sea negotiations that only a single treaty, dealing with all the issues involved in the law of the sea, would be negotiable, any splitting off of the issues bogged down in Committee I so as to conclude a treaty on Committees II and III matters only is out of the question. Thus the options open to the parties to resolve the impasse are few.

The Group of 77 may, in the next session in May 1977, attempt to bypass the industrialized States completely by avoiding the consensus method of reaching agreement used so far, and using their superior numerical strength to get a two-thirds vote on the issue, and thus establish the

9. Embodied in the General Assembly Declaration of Principles governing the Seabed and the Ocean Floor and the Subsoil there of. beyond the Limits of National Jurisdiction. GA Res . 2749 (XXV) , 17 December. 1970 .

10. Chainnan's Report. p.9 .

11. Ibid , p . 10.

12. Doc.A/CONF.62fWP.8/REV. I/Pa rt 1. Article 22 and Anne x 1, Pars. 4 & 6(b).

13. Ibid , Annex I. Par. 12 (b)(3).

Authority in accordance with their perceived interests - a procedure which is allowed by the Conference Rules of Procedure.' 4 However, if a treaty were concluded by this method it is highly unlikely that it will be ratified by the major industrialized States - it certainly would not pass the Senate - and therefore the whole object of getting a universal law of the sea would be defeated.

The industrialized States, for their part, may either refuse to ratify a resulting Convention or may ratify it subject to a reservation with regard to the seabed mining regime. By treaty law' 5 such reservations are permissible unless prohibited by the treaty, or "incompatible with the object and purpose of the treaty." Here again, it is arguable that a reservation on the subject of seabed mineral exploitation would be incompatible with the object of a Convention which aims at a universal regime for the sea. These States have another option (particularly pertinent in that even if a generally accepted Convention were agreed upon and signed in the near future, it would be many years before it could obtain the necessary ratifications to enter into force) of ensuring a stable and secure system of exploitation by means of domestic legislation. For instance, S.713, a Bill "To provide the Secretary of the Interior with authority to promote the conservation and orderly development of the hard mineral resources of the deep seabed, pending adoption of an international regime therefore," has been before the Senate for some time, and there are similar bills pending in the House. Broadly speaking, this proposed legislation authorizes exploitation of deep seabed minerals

by United States and " reciprocal State" nationals under a licensing system directed by the Secretary in the interim period before the United States ratifies and becomes bound by a Law of the Sea treaty, and providing for a Government guarantee against investment losses sustained under a future international regime. To the extent that this proposed unilateral legislation purports to encourage the development of resources much needed by the world community it would seem to be unobjectionable, even admirable. However, it assumes that seabed hard minerals are of the same nature as the living resources, the fish , open to all nations to exploit in accordance with the principle of freedom of the seas, and it is simply not true that there is an international rule governing these mineral resources: it is precisely because there is no such rule that the negotiations have proved so difficult, and in a very real sense Committee I is engaged in making the rule. Also, the provision that the licensing system is to apply until the United States ratifies and is bound by a future treaty is extremely open-ended and opens the way to permanent unilateral exploitation by the U.S. companies. Finally, such legislation would contradict the basic principles of United States oceans policy as developed over the years since 1945. It was stated most clearly by President Nixon in his message to Congress in 1970: "Multilateral agreement is essential. Nations have interests in the seas which differ widely and result in different national priorities. Unilateral claims to the sea or its resources force other nations to make a stark choice between confrontation and acquiescence in situations prejudicial to their interests. Neither result contributes to stable world peace.'" 6 This remains the Administration's viewpoint and it has succeeded in prevailing on Congress not to pass this legislation so far. Nevertheless, although there is no reason to assume that the Carter Administration will adopt a different oceans policy, there are signs that this legislation will be brought to the vote in the session beginning in January, as the patience of the Senate appears to be exhausted now that commercial exploitability is po[;sible in the near future.

An impasse indeed - and an opportunity lost to mankind.

14. A/CONF.62/SR.17. (1 July. 1974) at 5-6.

15. Embodied in the Vienna Convention on the Law of Treaties .

UN Doc. A/CONF.39/27. Opened for Signature May 25, 1969.

16. Departm ent of State Bulletin 66 , (1972).312,409.

9

I

he F-fth A e dment: A View From e ye of The Storm

by Samuel J. Reich and Mark L. Glosser The self-incrimination clause of the Fifth Amendment can be described as the "misunderstood privilege." Popular misconception is to the effect that one who refuses to answer must have something to hide. Advising a client to stand on the privilege often places attorney and client in personal dilemmas. As members of society and members of a proud profession , attorneys view their function as aiding in the search for tru tho However, attorneys are obligated to their individual clients and the responsibilities of representation include the duty of availing the client of all available legal rights in the interest of the client. This article examines the Fifth Amendment in terms of the lawyer's obligations, not as a matter of legal scholarship, but from the view of the practicing attorney who must counsel a client. One warning is in order: readers may look for abundant legal citations; there are few. This article is based primarily on the views and experiences of the authors.

I. In a perfect society, there would be no need for the privilege against compulsory self-incrimination. But the lessons of history and our recent experiences reflect that our system often functions imperfectly and is capable of subversion. The privilege applies to all members of society - the innocent as well as the guilty. Protecting guilty persons has been one of the prices that our society has been willing to pay for our system of justice.

The privilege is fully consistent with that system. The prosecution bears the burden of proving guilt beyond a reasonable doubt; the accused is presumed innocent. While it may be to the advantage of an individual in some situations to step forward and discuss a case with authorities, it would be inconsistent with basic principles to require him to do so.

It has been said that the privilege arises from the basic dignity of mankind and that it is an affront to that dignity to compel an accused to incriminate himself by his own words. See Ullman u. U.S., 350 U.S. 422 (1956).

The privilege underscores the differences between an adversarial and an inquisitional system of justice and is designed to require the state to seek out its evidence independently through skillful investigation rather than relying on interrogation of the accused. See U.S. u.

Mandujano, 96 S.Ct. 1780-83 (concurring opinion) Until recent years, it was assumed that the Fifth Amendment had its basic roots in a right of privacy - the right not to be bothered, the right to be left alone by the Government unless and until the prosecutive authorities developed substantial evidence of wrongdoing. Any other approach would require an accused to discuss important matters wi th authorities regardless of how vague and insubstantial the basis of inquiry. Now it appears that privacy is not protected by the Fifth Amendment, only the right against the compelled testimony. Kastigar u. U.S., 406 U.S. 441 (1972). See also, U.S. u. Mandujano, 96 S.Ct. 1768 (1976).

This deprives the Fifth Amendment of much of its dignity and standing as a pillar of important human freedoms and foreshadows further retrenchmen t of its protections.

However, when the Fifth Amendment is invoked, one effect, whether or not intended by the Framers and whether or not sanctioned by current interpretations, is to limit the compelled contacts which the citizens must have with authorities and give the accused a measure of privacy.

10

II.

Obviously, there are good reasons why attorneys advise their clients to invoke the Fifth Amendment, regardless of guilt or innocence. It seems appropriate to discuss some of these. If the client is a suspect or a "target" of prosecution, the authorities are inclined to believe his guilt. There is little chance that his words will dissuade them. A statement which is eXCUlpatory can be offered in court to satisfy elements of the prosecution's case such as knowledge or association; the exculpatory aspects of the statement will be ignored. The statement may be useful to the prosecution in corroborating elements of the prosecutor's case including the testimony of witnesses who, at the time, are unknown to the defense. If a client makes a mistake in the interrogation, however insubstantial, the prosecution may offer the statement as evidence of a consciousness of guilt or use the statement in cross-examination for the same purpose.

Many defense attorneys have had the painful experience where a client is indicted only for perjury or false statements, as opposed to some substantive offense. This should not be terribly surprising. For example, tax investigations are time-consuming and often technically difficult. It is much easier to prosecute a defendant for perjury or false statement if he denies receiving a specific payment than to prosecute for tax evasion. It is easier to prosecute a law enforcement officer for perjury or false statement if he denies meeting with a racketeer, than to prove the elements of a racketeering charge. Thus, by giving a statement, the defense may provide a more meaningful or, perhaps, the only basis for prosecution available to the authorities.

To complicate matters, client and attorney often are not well informed as to the prior information, attitudes, and goals of the prosecuting agencies. The client faces real risks of giving statements or testimony contrary to the information already in the posseSSion of the authorities. In such a situation, a prosecutor may tend to disbelieve the client whose testimony does not fit his theory of the case. The end result may be a prosecution, on substantive charges and/or for perjury or false statement. Of course, attorneys typically attempt to find out whether their clients are targets of prosecution . Occasionally, they may receive a direct answer, but prosecutors are often unwilling or unable to give a conclusive answer.

Another concern is with the accuracy of the recorded statements. This is not so much a problem where the witness is subpoenaed to testify before a Grand Jury and his testimony is transcribed by a Court Reporter or in an investigative interview where a stenographer is present.

Editor's note: Samuel J. Reich is an Adjunct Professor at Duquesne Uniuerslty School of Law, teaching Professional Responsibility and the Criminal Defense Clinic. He has been a practicing defense attomey since 1966, and is presently a partner In the law firm of Ge(sky. Reich & Reich. He graduated (rom the Uniuersity of Pennsyluania Law School in 1960.

Mark L. Glosser assists Reich in the Criminal Defense Clinic; he graduated (rom Duquesne Uniuersity School of Law, where he was Associate Editor of the Law Reuiew.

However, some law enforcement agencies (the F.B.I. is a foremost example) rely on the narrative statement; this is, a statement which is prepared in narrative form by the officer from his notes after the interview is concluded. This is risky because some agencies have a policy of declining to interview witnesses in the presence of an attorney. Two officers will be present, assuring a substantial advantage in the event of a dispute as to exactly what was said. The process depends upon the infallability of the officers' memories; where precision of language becomes an issue, the process is indefensible. Normally, the witness will not be read the final draft or be given a chance to make corrections (his errors or the agents') or revisions. Defense attorneys relate instances where remarks have been attributed to clients in language which the clients are incapable of using. Often, the statements come out in language which is highly self-serving to the prosecutive views of the interviewing agency.

Frequently, when met by a refusal to be interviewed, the officers may remind the client that he may be subpoenaed to testify before a Grand Jury . There are two appropriate responses: first, Grand Jury testimony will be recorded and accurate; second, even if the witness gives a statement to the officers, he may and probably will be subpoenaed to the Grand Jury. One of the most distressing features of the interrogation process is that the cooperating witness may never be left alone; one answer invites another hundred questions; one session may lead to numerous.

The legal effect of the privilege is to permit a suspect or a target to choose not to self-destroy through the words of his mouth . For the suspect or the target, interrogation is a no-win proposition; he seldom helps himself; he only hurts.

Silence is normally the best policy. When a client remains silent, the burden of proof - all of it - remains on the prosecution. Desirable side effects include added measures of privacy.

III. The authors believe the previous discussion to be valid and relevant to most situations. However, no discussion would be complete without a reference to the representation of "target" defendants. In connection with the representation of such individuals, the previous discussion becomes even more valid, almost to the extent of an imperative. In traditional law enforcement, a specific crime (for example, bank robbery) occurs and the investigators follow their clues to apprehend a suspect. There is seldom any doubt as to the crime; the areas of judgment concern the links to a specific suspect. But there is a class of cases where the investigation begins not with a criminal act but with a suspect and focuses on his actions to determine if any of them constitute crimes. This type of prosecution is of increasing frequency in recent years on the federal level.

For years there has been national concern over organized crime, particularly, the alleged national crime syndicates.

Various law enforcement agencies have compiled lists of' suspected organized crime figures and their associates.

Those listed are marked for saturation investigations.

At the beginning of the Nixon administration, a new gloss was put on the organized crime program : the Strike Force concept. Special attorneys were assigned to selected Federal Districts thought to have severe organized crime problems. Although the Strike Forces had nominal associations with the local United States Attorneys, often, they were substantially independent. The Strike Forces consisted of the Department Attorneys and assigned investigators from the cooperating agencies: Federal Bureau of Investigation (where participating), Internal Revenue Service, Postal Inspectors and others. Thus, targets received multiple scrutiny.

One Strike Force official once likened its activities to "headhunters." Not only was the description candid, but it was accurate. Lest we forget, the targets are not animals, but humans; not desperate fugitives on the run, but citizens (usually with families) living in a civilized society often holding high position and enjoying public trust and confidence; not persons named in specific complaints of criminal conduct but selected for the hunt because of the belief that they may have done something.

Recent developments in the Department of Justice indicate a limiting or even the elimination of the Strike Forces. But there is every reason to believe that the mentality will remain . The concept of "organized crime" is vague. What began as a drive against major crime syndicates easily expanded to include political and financial associates.

Before long, the organized crime program was applied to persons and activities having little or nothing to do with syndicates or syndicate figures. Any crimes by political figures and their associates fall under the present investigative jurisdiction. People with reputations for long-standing criminal activity, whether or not syndicate-connected, may be targets. In fact, at the present time, it seems that organized crime investigations defy definition and may include any crime committed by anyone.

Ironically, relatively few prosecutions involve the syndicates at all; the shift in prosecutive emphasis appears in the direction of political or "white collar" crimes. It may be questioned whether the emphasis results from the comparative seriousness of the activities or the difficulty in accomplishing the original goals of locating and breaking-up the syndicates. When authorities start with the belief that a targeted individual has committed crimes and should be prosecuted, sloppy, dangerous investigative and prosecutive practices result. There is a tendency to lower the prosecutive standards for targeted individuals. For example, in normal criminal tax prosecutions, the Internal Revenue Service and the Department of Justice will not recommend or approve prosecutions unless the evidence of guilt is strong. We understand and believe that the prosecution standard is less in cases which bear the designation of "organized crime" and there is more of a tendency to "take a chance" with weaker cases or minor cases which might be ignored against ordinary persons. Even when there is no conviction, the target is put to the risk and expense of investigation and trial.

Therefore, as to targets, the need for silence is magnified. There is little possibility that the client will benefit by discussing his matter with the authorities. The probability is that he can only hurt, not help, his cause.

IV. In many ways, the decision is taken out of the hands of the attorney when the authorities grant immunity, either transactional or testimonial. Immunity is widely used in the Federal Courts. Transactional immunity results in a witness being protected from prosecution either in State or Federal Court as to any matter about which he is questioned and testifies. Kastigar v. U.S., 446 U.S. 441 (1972) . "Testimonial" or "use" immunity is much narrower. It merely protects the witness from having his testimony used against him, including any leads obtained therefrom in any criminal prosecution. Kastigar v. U.S., Supra. Under present law, Federal authorities grant only the narrower testimonial immunity.

In immunity situations, the witness appears before the tribunal and invokes his Constitutional privilege not to testify.. There is a petition by the prosecution which, in the Federal system, has been reviewed and approved by officials in the Department of Justice. It has been held that the Court has no discretion to grant or hold immunity if the petition is in proper order, and if there are no valid legal or technical objections, the immunity is granted. Thereafter, the witness may not decline to testify on the ground of the privilege against self-incrimination.

In earlier years, it was held that transactional immunity adequately met the legitimate purposes of the Fifth Amendment and a witness receiving such immunity was compelled to testify. However, transactional immunity, which offers sweeping protections in terms of extinguishing any possibility of Federal or State prosecution was not a favored device and authorities were reluctant to grant such immunity. In contrast, testimonial or use immunity does not protect from prosecution, only from the use of the compelled testimony or leads derived therefrom . The Kastigar line of cases has held that such use immunity is the equivalent to the privilege against self-incrimination.

11

To be sure, there are some protections from use immunity because in the event of later prosecution, the authorities assume a higb burden of showing that the compelled testimony was not used in any fashion. See U.S. v. McDaniel, 482 F.2d 305 (8th Cir. 1973). Transactional immunity, at least, provides blanket assurance that there will be no prosecution about the subject matters of testimony. The witness loses the protection of silence, but the bar to prosecution is nearly the equivalent to the protection lost. But, to suggest that use immunity is equivalent or nearly so to the Constitutional protections is nonsense. One invoking the Fifth need not gamble that his words will provide damaging leads or clues; he remains silent.

But what does the witness get from use immunity? The notion that a witness is "protected" while sitting down for a chat in the Grand Jury room with a prosecutor trying to hunt him down is ludicrous. The risk is all on the witness. If he discusses matters which could destroy him in a prosecution, he must have naive faith that the prosecution will not disclose his testimony to criminal investigators. He must have faith that there will be no leaks (either by the prosecutors or others) from the Grand Jury secrecy. (If recent events are any guide as to such leaks, the authorities cannot even guarantee against a verbatim account of the testimony appearing in the newspapers.) Months or years later, the ability to prove a connection between the compelled testimony and the later prosecution may be diminished to the point of nonexistence.

History shows that there are prosecutive abuses; by exercising the privilege or receiving transactional immunity, the witness has meaningful protection. By receiving testi路 monial immunity, he has much less. Whereas, Federal prosecutors were more reluctant to give transactional immunity, testimonial immunity is now common, even to targets. The obvious reason is that testimonial immunity does not give full protection.

This is not to say that attorney and client, when con路 fronted with an immunity situation, should throw up their hands and surrender. Testimonial immunity does give protection to most potential witnesses, particularly, where a single transaction is involved. Quite clearly, it does not give much meaningful protection to an individual who is suspected of wide-ranging, serious violations and is sub路 jected to broad interrogation. When confronted with an immunity situation, it is suggested that the lawyer should advise the client to invoke the privilege and require the Government to grant immunity. There are situations where the prosecution has backed off a threat to grant immunity and the witness was not required to testify.

Conclusion It remains for another day to discuss whether listing or

targeting is consistent with our system of justice and whether such practices can really be limited to the "bad" people in society rather than the innocent. But those who represent suspects and targets should have a special appreciation of the need for invoking the privilege against self-incrimination. The privilege still affords a meaningful protection.

The attorney must ask himself a simple question: "Is there an advantage to the client to confer with the authorities?" Obviously, there are risks to the client. If the attorney cannot see advantages which substantially outweigh the risks, the attorney should advise his client to decline to make a statement or to testify.

Also, we believe that the Fifth Amendment has continuing social utility. All the reasons cited by its past supporters - advancing human dignity, enhancing the adversarial system, preserving privacy, protecting against government abuse - still have validity in our present society.

Needed Changes: The Reorganizati,o n of the District Attorney's Office of Allegheny County By: Bob Colville & Walter Bunt, Jr.

INTRODUCTION A staff study of the Allegheny County District Attorney's office in early 1976 characterized the office as a deplorable, deteriorated operation. While moving furniture in late 1975 , Criminal Court Case Files were found behind a filing cabinet and desks in the District Attorney's office.

Part-time Assistant District Attorneys presented their cases in court without having previously spoken with the police, victim, or witnesses. Middle level office management and supervision in the District Attorney's office was nonexistent. Duplication of job functions were common, and employees of the District Attorney's office were performing jobs found elsewhere in the Criminal Justice System.

12

The problems confronting the office were imbedded in the historical development of the duties of the Allegheny

Editor's Note: Robert E. Colville is the Allegheny County District Attorney. He received his undergraduate and I4w degrees from Duquesne University.

Walter Bunt is Executive Assistant to the District Attorney. Bunt received a B.A. from The Citadel and M.A. and Ph.D. degrees from the University of Pittsburgh, where he was a Fulbright schol4r and a von Humbolt fellow.

County District Attorney's office. The office not only was responsible for prosecution, it also supervised a street crime investigative unit, criminal identification unit, as well as criminal evidence laboratory. The District Attorney, an elected official in Allegheny County, prosecuted all cases on behalf of the Commonwealth with a part· time attorney staff of 31 Assistant District Attorneys. In addition to prosecutorial duties, the District Attorney supervised a Detective Bureau . The Bureau engaged in street crime investigation of homicide , rape, and major theft cases in Allegheny County. The District Attorney supervised the operation of the Allegheny County Crime Laboratory. The Crime Laboratory served numerous criminal justice agencies with its scientific analysis of criminal evidence. The Bureau of Criminal Identification, the depository for criminal records in Allegheny County, was also within the District Attorney's organizational scope. Given these myriad administrative responsibilities, it was not surprising that the daily problems of the basic operation of the ancillary criminal justice units tended to overshadow the functions of prosecution. The correction of this situation required a re-evllluation of the District Attorney's responsibilities, and a development of a multi-year reorganization plan to (1) provide a professional staff of trained prosecutors, and (2) eliminate the duplication and inefficiencies in the office.

FULL-TIME PROFESSIONAL PROSECUTORS Numerous studies had long called for the transformation of a part-time District Attorney staff to a full-time staff.

Chart A indicates the incongruity of Allegheny County's 1975 budgeted part-time assistants in comparison with other District Attorneys' offices. Effective April 1, 1976, the District Attorney's office received budget approval providing for sixty·three full-time Assistant District Attorneys. It was recognized that more were needed. However, with the desire on the part of the District Attorney's office to live within last year's budget, sixty-three full·time assistants were accepted as a beginning.

Previously, a few assistants were assigned to homicide, rape, and appellate cases. The remainder were assigned to general trial functions and were supervised by the second Assistant District Attorney. This organizational structure proved unwieldly and unable to provide for the targeting of repeat felons for special case preparation, and for the development of a coherent program to evaluate first offender program potentials. Therefore, the office was reorganized into eight specific attorney units plus a homicide coordinator. The units and their responsibilities are as follows: Pre-Trial

Post-Trial Homicide Coordinator Crime Person Unit Theft Narcotics

General Assignment Units

Responsible for selection and supervision of first offender programs, pre-trial information conferences, trial listing coordination, and supervision of area prosecutors.

Responsible for appeals, post conviction hearing, pardons, and mental healthrelated cases.

Responsible for preparation and prosecu· tion of homicide cases.

Responsible for preparation and prosecution of rape, child abuse, aggravated assault and battery cases.

Responsible for and prosecution of serious burglaries, robberies and commercial fraud cases.

Responsible for preparation and prosecution of serious narcotic cases and responsible for responding to suppression motions.

Responsible for preparation and prosecution of cases not handled by other units.

In conjunction with the reorganization, a professional career progression was established delineating four classes of attorneys, differentiated by responsibility . An Attorney I supervises each unit . The Attorney I's in charge of crime person, narcotics and theft are responsible for trying cases, as well as coordinating the preparation and prosecution of individual cases. The Attorney I's in charge of the general assignment unit are responsible for coordinating the prosecution of cases assigned to them. In addition, they also train the newly assigned Assistant District Attorneys, developing their skills for trial work and preparing them for assignments in other sections of the office. Chart B outlines the financial remuneration provided the full-time assistants.

Salaries were increased with the receipt of Federal supplemental funds approved July 20, 1976, by the Pennsylvania Governor's Justice Commission.

An integral part of the development of a full ·time professional staff was the provision for training programs.

New Assistant District Attorneys are now assigned to a general assignment unit. The initial stages of training consist of an introduction to the operation of the District Attorney's office, a review of the criminal justice system, and a review of the rules of criminal procedure and the rules of court. Following completion of the initial phases, the Assistant District Attorney is introduced to trial work. The Attorney I supervisor "second chairs," or supervises, an Assistant District Attorney through a number of trials. As the Assistant District Attorney becomes trial-experienced, more significant cases are assigned. The Assistant District Attorneys are then directed to work with the special prosecution units. As vacancies become available in the special prosecution units, the experienced Assistant District Attorneys are assigned to fill them. In addition, the Assistant District Attorneys are assigned periodically to prepare appellate briefs, serve as attorneys in the pre-trial unit, and fulfill numerous other attorney functions found within the District Attorney's office.

By order of the Supreme Court of Pennsylvania, the Grand Jury System was dissolved June I, 1976. This dissolution provided the District Attorney's office with an opportunity to prepare individual cases. Previously, the office had targeted only homicides and a few other serious cases. With the process of informations required to be filed by the District Attorney, the Pre-Trial Unit began to provide for case evaluations and assignments. Police officers and witnesses are subpoenaed to attend a Pre-information Conference conducted by an Assistant District Attorney.

At the Conference the Assistant District Attorney reviews the legal and factual aspects of the case with the police officer and the witnesses. Based upon this review the Assistant District Attorney makes a recommendation to the Attorney I in charge of the Pre-Trial Unit whether to file an information, nolle prosse the case, or recommend special first offender diversionary programs. In addition, the cases are reviewed by the Second Assistant, First Assistant, and the District Attorney. A final decision is then made as to the processing of the case. The Pre-Trial conference accomplishes a number of important purposes. The conference provides for a legal as well as factual hearing of the case from the police and the witnesses. It requires police officers to provide up-to-date criminal histories of the defendant, thereby enabling targeting of repeat offenders and identification of candidates for first offender programs. It provides for an evaluation of witness-related problems, and for an opportunity to inform the police of additional evidence or items of information required for trial. It enables the District Attorney to target and assign cases based upon the serious nature of the offense itself for prosecution by the special trial units.

13

REDUCTION OF DUPLICATION AND INEFFICIENCY As the equivalent of the chief managing partner in a large law firm, the District Attorney must efficiently and effectively manage the operation of the office. Unlike a private firm, the District Attorney receives his revenues from the public coffers making the operation of the District Attorney's office a public concern. In fulfilling his managerial function, the District Attorney must concern himself with other governmental agencies interacting with his office. If inefficiency and duplication are found to exist, the District Attorney must work with the agencies to eliminate wasted efforts.

The reorganization reduced duplication and inefficiency.

Traditionally, the District Attorney possessed a detective unit engaged in street crime investigation. Murders, rapes, robberies were all part of the investigative purview of the District Attorney's detectives. The District Attorney's detectives did not investigate burglaries, larcenies, or other offenses; these investigations were conducted by Allegheny County Police. Police investigative experience indicates that in the course of investigating one crime, other crimes are often cleared. Unfortunately, this functional separation did not provide for co-ordinated crime resolutions. The Board of County Commissioners readily accepted a suggestion consolidating street crime investigation into one department. The District Attorney's office retained twenty investigative positions to be filled by competent, experienced investigators responsible for investigating white collar crime.

Ancillary to the investigation of street crime are the supportive services. It was necesSary to consolidate in the transfer the Bureau of Criminal Identification, crime laboratory, teletype section, and police communications found within the District Attorney's office to the Allegheny County Police Unit. This provided a savings in equipment

and salaries, while providing an increase of services. For example, the centralized communication activities enabled the District Attorney's office to implement a District Attorney "On Call Program," which enables police departments throughout the County to call a central number when criminal, legal assistance is required. The communications system then contacts through a "radio-beeper" the Assistant District Attorney in charge of the specific crime area. The Assistants respond, contacting the police with legal assistance. Such assistance to date has provided local police departments with advice concerning evidence collection, search warrant acquisition and general criminal procedures.

CONCLUSION The implemented changes developing a professional fulltime staff and eliminating duplication and inefficiency have been designed to enable development and presentation of well prepared cases, noting repeat felons and individuals eligible for first offender programs. Successful accomplishment of these goals will take time. As improvements are made, other significant needs become exposed. As Assistant District Attorneys prepare cases targeting repeat offenders and crimes of a serious nature, other problems become apparent. For example, elderly victims and witnesses of sex related offenses are subject to pressures impairing their testimony. Special care must be exerted in preparing these cases, and special services are needed to confront many problems associated with their court appearances. Although it is desirable to focus on these latter concerns, the priority must be on perfecting the primary case preparation and evaluation as outlined above. Without the assurance that cases will be thoroughly developed, competently prosecuted, and efficiently administered, other concerns are superfluous.

CHART A: DISTRICT ATTORNEY STAFF COMPARISON 1975* LOCATION ALLEGHENY

POPULATION 1,600,000

D.A. SALARY $24,000

f'

NOTE :

SALARY MIN. MAX. $12 ,012 $21,000 14,000

24,000(**)

2 ,000,000

43,120

109

14,136

33,168

1,900,000 1,800,000

42 ,000 25,900

144 80

13,600 15,000

40,000 26,000

1 ,646,300

45,360

94

14,412

42,408 33,000 33,000 3 8,592

ALLEGHENY (1976) HARRIS COUNTY (Houston, Tex.) PHILADELPHIA CUYAHOGA (Cleveland) ORANGE COUNTY ( California) DALLAS NASSAU COUNTY (New York) SAN DIEGO COUNTY (Califo rnia) BRONX COUNTY (New York) DADE COUNTY (Miami, Fla.) MARICOPA COUNTY (Phoenix, Ariz.)

SEATTLE ALAMEDA COUNTY (Oakland, Calif. ) BALTIMORE CITY (Maryland) FORT WORTH SACRAMENTO COUNTY (California)

NO . OF FULLTIME ASSTS. 31 (part-time)

24,000

(full~ilme )

1,500,000 1,500,000

38,500 45,000

83 96

11,400 11 ,400

1,500,000

44,290

109

15,163

1,478,000

40 ,800

151

13,000

40,000

1,389,400

46,000

80

12,000

38,000

1,200,000

23,500

80

12,147

29,286

1,200,000 1,100,000

30,300 40,056

60 105

12,000 13,632

24,600 36 ,180

900,000

37,000

96

13,596

24,700

750,000 700 ,000

39,500 38,377

52 69

10,800 13,238

33,000 34,72 3

* Information provided by

**

National District Attorney 's Association.

Does not include First and Second Assistant salaries at $31,500 and $29,000.

CHART B: ALLEGHENY COUNTY 1976 ASSISTANT DISTRICT ATTORNEY SALARIES

14

TITLE

COUNTY BUDGET

District Attorney First Assistant Second Assistant Attorney 1 2 3 4

$

24,000 27,500 25,000 19,000 18,000 17,000 12,000-16,000

LEAA SUPPLEMENT

TOTAL $

4,000 4 ,000 5 ,000 4,000 4,000 200

24,000 31,500 29,000 24,000 22,000 21 ,000 14,000-18,000

Inside The

istrict Attorney's 0 fice

CHRIS G. COPE' • '

MICHAEL J.

In the course of a forty-minute interview with the Chief of the Trial Division of the Allegheny County District Attorney's office, there were at least a halfdozen interruptions, by fellow workers or clients wanting advice or answers from Chris G. Copetas.

It appears that Copetas has earned the high regard of his fellow attorneys and clients quickly, as this is his first year in the DA's office, but it is more likely that this high regard preceded and was instrumental in his attaining the position of "":';Oo;;;lol,_ ..... Depu ty Assistant District Attorney.

Copetas is a hard worker, a workaholic by his own definition, and though he modestly claims uncertainty as to just how good an attorney he is, success has accompanied him in all his endeavors.

Graduating from the University of Pittsburgh in 1955 with a B.A. in History, Copetas did not enter the day division of Duquesne Law School until 1966, working in the interim as a self-employed contractor. While in law school Copetas was a member of Phi Alpha Delta and served as a Juris staff member. Along with his in-school activities, Copetas worked for three years, during both school terms and summers, as a law clerk for Paul Kachulis.

Upon graduating from Duquesne Law School in 1969 Copetas became associated with the civil and criminal trial law firm of Kachulis, Lapidus, Adams and Hillen. Though he is still associated with the firm, he has had little time to maintain his private practice since accepting his current position. His tasks in this new endeavor are complex and varied, including everything from personally training all new attorneys who come into the DA's office to reviewing every single case that passes through his domain. He is responsible for all pretrial work and personally enters into the plea bargaining sessions in difficult cases.

Besides his extensive trial work, Copetas has compiled a significant number of hours as a lecturer at various educational institutions. I~ 1972 and 1973 he taught courses in Civil Responsibility, Criminal Law, and Evidence to the Pittsburgh police. As an affiliate professor at Indiana State University in 1974, Copetas taught Criminal Law to undergraduates, and he is currently a lecturer and Section Head at Penn State University, teaching Criminal Law and Evidence to magistrates and others. Though another person might despair at such a large and demanding workload, Copetas has also found time since 1973 to volunteer his services to the Pittsburgh Urban Redevelopment Authority and has recently been named vice¡chairman.

Copetas is undoubtedly a man of significant and varied accomplishments, yet he is reluctant to talk about himself.

This modesty is reflected in his lack of desire to discuss his professional achievements. Copetas is not married and spends his spare time in ordinary pursuits, listening to rock and country music and going to Pitt and ~teeler football games. But he is far from an ordinary man.

Michael J. Reilly, as the First Assistant District Attorney of Allegheny County, has the difficult task of running the DA's Office. He evidences a concern for others who work with him by his warm smile and friendly manner.

Reilly graduated from Georgetown University in 1964 with a B.A. in History and a minor in Philosophy. He was later admitted into the Duquesne Law School, Evening Division and received his law degree in 1970. As an undergraduate, he worked for the U.S. Department of Health and for the "second largest liquor store" in Washington, D.C. While attending Duquesne he was a member of Phi Alpha Delta and along with Lorraine Mullen won the Regional Appellate Moot Court Competition in 1970. Reilly represented Duquesne in the National Competition and was one of the founders of the Appellate Moot Court Board.

In addition to his activities, Reilly worked while attending law school. He first worked as a city police officer and then advanced to the positions of city detective and homicide detective in the DA's Office. He was also a member of the Funding and Criminal Justice Division of the State Crime Commission.

Upon graduation from Duquesne, Reilly went to work for the firm of Reed, Smith, Shaw and McClay. While at Reed, Smith, Reilly handled a variety of cases in the labor law area which established precedents in this field in both the Third Circuit and in Pennsylvania. He took a leave of absence from that. position during 1971 to assume the position of Assistant Public Safety Director for the City of Pittsburgh. Returning to Reed, Smith in 1972, he continued to work there through 1975 in its Labor Division. In January, 1976, he assumed his present position and now also serves as Chairman of the Board of the Public Housing Authority for Pittsburgh.

As First District Attorney, Reilly feels that the development of clinical legal programs should be stressed in the law school curriculum. He believes that the law schools are going to have to parallel the approach of medical schools, combining both theory and practice. This, he believes, will give the law student a firmer basis from which to begin the practice of law.

Reilly stressed the growing recognition by members of the legal profession for the need of specialization. There is a growing awareness that the individual lawyer can't possibly master every area of the law. He foresees the establishment of small legal clinics made up of a few attorneys to handle legal problems. He also thinks that with increasing litigation there will be ample opportunities for law graduates to find work practicing law.

Reilly, who is single and resides in Mt. Washington, lists scuba-diving in the Carribean as one of his favorite leisure activities. He describes himself as a "terrible athlete," but still manages to keep involved in sports by coaching the DA's softball team.

S.J.P.

M.A.A.

E LLY

15

TheH lis

by Robert L. Garber

Congratulations to Duquesne's recent graduates who passed the Pennsylvania Bar Exam. Of the Duquesne graduates who took the Bar for the first time, 133 passed.

Duquesne's 97% average surpassed the State average of 89% on the July exam.

In October the Egan Chapter of Phi Alpha Delta Law Fraternity initiated 16 new national members and 34 associate members. Professor John Gedid is welcomed back to his position of co-faculty ad visor along with Professor Patrick Basial.

Egan Chapter representatives attended a district conclave held at West Virginia University during November.

Judge Gourley to promote trial practice and experience. Pitt, Dickinson, West Virginia and Duquesne participate. The outstanding participants receive $500 each and the outstanding team is awarded a trophy. Judges from the A llegheny Common Pleas Courts will preside over the final competition.

I rT I Two Duquesne Law students will be entering the 1977 Client Counseling Competition sponsored by the Law Student Division of the American Bar Association.

This will be the first year that Duquesne has participated in the nationally sponsored competition.

A Landlord-Tenant situation will be the subject of the consultations this year. The object of the Competition is to simulate a real law firm consultation.

came the strong challenge Wayne Stander, 1D.

L The Law Student Division of the American Bar Association has just completed a successful membership drive for the current school year. The membership drive was conducted by Jim Pocius, Duquesne's Representative of the LSD. New members will receive a year's subscription to the Student Lawyer magazine. A national computerized placement program, project grants, and individualized A.B.A. sections are just some of the facilities available to members.

_I

Recently Professor William Donaher of Duquesne Law School and Professor Alvin S. Weinstein of Carnegie-Mellon University addressed a Symposium on Products Liability at Ohio Northern Law School. The symposium was in conjunction with other presentations that the two professors have made. Professor Henry Piehler of CMU and Professor Aaron Twerski of Hofstra Law School also participated. Previously they have addressed the State Bar Associations of Pennsylvania, Maryland, Wisconsin, Kansas, Oklahoma, and Utah.

The second round of the Trial Moot Court competition has ended. Two final rounds remain.

The purpose of the competition is to choose two finalists to represen t D uq uesne in the Gourley Cup Competition to be held in the spring. This Competition was established by the late

of

David Repko, 3E, defended his title as Intramural Tennis Champion of Duquesne University. He captured the title for the second consecutive year when he over-

e

LI T Due to the death of Professor Seney, Professor Ray Sekula has taken over the third year day and fourth year evening course in Conflicts of Laws. Mr. Henry Cohen is teaching the remainder of Professor Sekula's second year day and evening Tax course. Mr. Cohen has previously taught at Duquesne as an adjunct professor.

• Duquesne University School of Law 600 Forbes Avenue Pittsburgh, Pennsylvania 15219

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