Santa Clara Law Magazine Fall 2014

T h e M a g a z i n e o f S a n ta C l a r a U n i v e r s i t y S c h o o l o f L aw | FALL 2 0 1 4 | v o l 2 1 n o 1

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EXTRAORDINARY RELIEF After years of work by a huge team, including students and attorneys at Santa Clara Law’s Northern California Innocence Project (above), George Souliotes is finally free. Page 16.

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Building for the Future: Campaign Update The Value of Faculty Scholarship NCIP Alumni Profiles United States v. Windsor: One Year Later

F RO M T H E D E A N

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SKIP HORNE Senior Assistant Dean, External Relations Elizabeth Kelley Gillogly b.a. ’93 Editor LARRY SOKOLOFF J.D. ’92 Assistant Editor Michelle Waters Web Marketing Manager JOHN DEEVER Copy Editor Amy Kremer Gomersall b.a. ’88 Art in Motion Art Director, Designer Charles Barry Santa Clara University Photographer Law Alumni Relations & Development Karen Bernosky B.S. ’81 Ellen Lynch Susan Moore B.S. ’86 Marjorie Short

Santa Clara Law, founded in 1911 on the site of Santa Clara University, California’s oldest operating higher-education institution, is dedicated to educating lawyers who lead, with a commitment to excellence, ethics, and social justice.

One of the nation’s most diverse law schools, Santa Clara Law offers its students an academically rigorous program, including graduate degrees in international law and intellectual property law; a combined J.D./MBA degree; a combined J.D./MSIS degree; and certificates in high tech law, international law, and public interest and social justice law. Santa Clara Law is located in the world-class business center of Silicon Valley, and is distinguished nationally for its top-ranked program in intellectual property. For more information, see law.scu.edu.

If you have any questions or comments, please contact the Law Alumni Office by phone at 408-551-1748; fax 408-554-5201; email lawalumni@scu.edu or visit law. scu.edu/alumni. Or write Law Alumni Office, Santa Clara University, 500 El Camino Real, Santa Clara, CA 95053.

The diverse opinions expressed in Santa Clara Law magazine do not necessarily represent the views of the editor or the official policy of Santa Clara University.

Copyright 2014 by Santa Clara University. Reproduction in whole or in part without permission is prohibited.

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Santa Clara Law is printed on paper and at a printing facility certified by Scientific Certification Systems to Forest Stewardship Council (FSC) standards. From forest management to paper production to printing, FSC certification represents the highest social and environmental standards. The paper contains 10 percent postconsumer recovered fiber.

Dear Friends,

I

n a flurry of activity over the past few weeks, we’ve welcomed a very strong new class to campus and delighted in our returning students.

In the Santa Clara tradition, alumni and student leaders reached out to the rather intimidated 1Ls, providing advice and support. At convocation, Dorian Daley ’86, senior vice president and general counsel at Oracle, told students of the intellectual growth, friendship, and sustenance they will find at SCU. She warned that they were building their professional reputations during law school and urged them to become problem solvers for their clients and communities.

From Silicon Valley to The Hague, our students value our vibrant network of alumni and friends. Your assistance to them—with employment opportunities, externships, and mentoring—is a large part of the reason they chose Santa Clara Law in a highly competitive market. Your gifts to support scholarships, faculty, and student activities enable so many to pursue their dreams. I am thrilled to announce one such recent gift from Katharine V. Alexander to endow the Alexander Professorship (see page 3).

I am excited to build a bold future for the Law School with your support.

With the University, we are planning one integrated building near the main entrance to campus. Part of a professional neighborhood, this modern learning facility will feature updated technology, collaborative Silicon Valley workspace, and opportunities for future SCU lawyers to learn and build a network alongside business, engineering, and other students. Building on our location, Jesuit tradition, and our strengths in high tech, global, and social justice law, this law building will promote innovation and entrepreneurship in service of others, with local and global impact.

I am so grateful to be a part of this community. Thank you for sharing memories of law school, your professional successes, and your high hopes for the future of Santa Clara Law. God bless,

A Lisa Kloppenberg Dean & Professor of Law Santa Clara Law

FALL 2014 | vo l 2 1 n o 1

CONTENTS

CHA R LE S B A R RY

FEATURES

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Building for the Future of Legal Education

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By SUSAN VOGEL

After years of work by a huge team, including students and attorneys at Santa Clara Law’s Northern California Innocence Project, George Souliotes is finally free.

By LISA KLOPPENBERG

As part of a major campaign at SCU, the Law School is planning a new integrated building near the main entrance to campus.

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A Cathedral of Understanding: The Value of Faculty Scholarship

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NCIP Alumni Profiles

By SUSAN VOGEL

Meet two Santa Clara Law alumni who say they were deeply changed by their work with NCIP during law school.

introduced by bradley joondeph

An essential aspect of Santa Clara Law’s mission is to add to the world’s store of knowledge. Here we explore the work of five of Santa Clara Law’s teaching scholars.

Extraordinary Relief

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CLOSING ARGUMENTS

United States v. Windsor: One Year Later

By PATRICIA CAIN

read THIS MAGAZINE ON THE WEB Visit us online for links to additional content, including the very latest news about our faculty, students, and alumni.

Our magazine website also makes it easy to share articles from this issue (or previous issues) with friends and colleagues. law.scu.edu/sclaw

DEPARTMENTS 3 Law Briefs 6 faculty news 28 class action

On the cover (left to right): NCIP team members Julianna Mancini, Maitreya Badami, Linda Starr (seated), Reed Wagner, Clare McKendry, and Pamela Vavra. Photo by Charles Barry.

LAWBR IE F S

“In today’s competitive market, facilities are a consideration in the eyes of prospective students. We recognize this factor and believe a new and modern law school is necessary to attract top recruits in keeping with our tradition of service for others.”

— Former California Supreme Court Justice Ed Panelli B.A. ’53, J.D. ’55, University trustee for 50 years K E IT H S UT T E R

Building for the Future of Legal Education A special announcement from Dean Lisa Kloppenberg

E

“As a graduate of Santa Clara Law School, I was taught the Jesuit tradition of knowledge in the pursuit of service. As the son of immigrants, that education gave me the chance to live the American dream. We have the opportunity to pass that torch to future generations. By investing in a new building, we can invest in giving law students a chance at that dream.”

—Leon Panetta B.A. ’60, J.D. ’63, Former U.S. Secretary of Defense and CIA Director

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who can work in teams, who can adapt to change, and who exemplify competencies such as leadership, initiative, conscience, and compassion.

The Law School will support these priorities with handson learning space, collaborative work areas, comfortable study spaces, and updated technology. The environment will be an inviting space, promoting interaction among students, our strong alumni network, Silicon Valley leaders, and global experts.

Look for more details soon on how you can help us realize our goals.

A R CHIT E CT’ S R E NDE R ING

arlier this year, Santa Clara University announced Vision 2020, an integrated strategic plan for SCU. I am pleased to announce that this plan includes a new building for Santa Clara Law, a unified facility to be built near the main entrance to campus. Strategically located adjacent to the Leavey School of Business, the Law School will be part of a new professional neighborhood, bridging academic partnerships across business and law and with others on campus.

Drawing on our location in the Silicon Valley; our strengths in high tech, global, and social justice law; and our Jesuit tradition; we are poised to prepare students who can be problem solvers and advisors to individuals and companies,

Moot Court Room—Alumni, students, faculty, and community members will utilize our 250-seat moot court room.

New Certificate in Privacy Law Among First in the Nation

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n response to the explosive growth of career opportunities for professionals versed in privacy law issues, Santa Clara Law is launching a new privacy law certificate, which is among the first of its kind in the nation.

“Santa Clara University and the Law School have been addressing cutting-edge privacy issues for a long time,” said Eric Goldman, co-director of the Law School’s High Tech Law Institute, and the initial certificate supervisor. “The new certificate will keep Santa Clara Law at the forefront of privacy-law education.”

The certificate, which will be offered starting this academic year, requires that students complete extensive coursework, professional fieldwork on privacy issues, a published paper on privacy topics, and certification from the International Association of Privacy Professionals (IAPP). “Students who earn the certificate will demonstrate that they have many of the skills desired by employers seeking to hire privacy-law professionals,” said Goldman.

Through its Privacy Pathways program, the IAPP partners with law schools to promote and encourage privacy education. As part of this program, Santa Clara Law and IAPP are working together closely, including letting students take the IAPP’s certification exams at a reduced cost.

The privacy law certificate will be supported by several Santa Clara Law professors with privacy law expertise, including Dorothy Glancy, a national leader on transportation privacy issues; Eric Goldman, an expert on Internet and advertising privacy issues; and Tyler Ochoa, co-author of the leading casebook on publicity rights.

This year, law school students also founded a new Privacy Law Student Organization.

“Demand by companies for privacy advice is at an all-time high and isn’t showing any signs of slowing,” said Scott Shipman, general counsel and chief privacy officer at Sensity Systems, and former associate general counsel and global privacy leader at eBay. “However, there aren’t enough trained attorneys in this field. SCU’s focus on this emerging field is of paramount importance to the global companies of Silicon Valley and demonstrates that SCU continues to have its finger on the pulse of the Valley.”

New Endowed Professorship in Honor of George Alexander

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anta Clara University School of Law is proud to announce the creation of the Katharine and George Alexander Professorship of Law, thanks to a generous gift from Katharine V. Alexander in honor of George J. Alexander (1931-2013), her beloved husband of 55 years, who served as dean of Santa Clara Law from 1970 to 1985.

The Alexander Professorship supports student-centered education that focuses on the potential for the law to promote access to and equality within the legal system. Along with the Alexander Community Law Center and the annual Katharine & George Alexander Law Prize, the new endowed professorship honors the lifelong contributions of Professor Alexander to the Law School, the community, and the legal profession.

“Santa Clara University makes justice not only a key piece of the syllabus, but a way of academic and personal life.”

—Almudena Bernabeu in her address to graduates at Santa Clara Law’s commencement in May. Bernabeu is the lead attorney with San Francisco-based Center for Justice and Accountability’s Latin America and Transitional Justice Programs. She is the lead private prosecutor on the high-profile case, underway before the Spanish National Court, against the Salvadoran officials alleged to be behind the massacre of six Jesuit priests, as well as their housekeeper and her daughter in 1989.

CHA R LE S B A RRY

For a link to the full text of her talk, see law.scu.edu/sclaw.

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LAWB RIE FS

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n March, Santa Clara University’s Institute of Sports Law and Ethics (ISLE) awarded its second annual ETHOS Award for Ethics in Sports to the Sports Legacy Institute (SLI) and the Boston University Center for the Study of Traumatic Encephalopathy (BU CSTE), two pioneering organizations raising awareness of concussions and providing advanced research and advocacy to effect major, positive changes in the field of sports medicine and injury prevention.

The ETHOS prize is an annual award honoring a decision, action, initiative, or program that has contributed to the ethics of sport in the United States. “Ethics of sport” refers to the adherence to rules and practices or structures that promote fair opportunity for all competitors, a concern for safety of all participants, and a focus on the positive impact of sport on American life and on the moral formation of all participants.

“These organizations’ founders have devoted their enormous personal talents to a cause greater than themselves,” said Kirk Hanson, executive director of SCU’s Markkula Center

M aria Q ui ñ onez

Second Annual ETHOS Award for Ethics in Sports

From left, Brent Jones J.D. ’85, Christopher Nowinski, co-founder and president of Sports Legacy Institute and 2014 ETHOS Award Co-Recipient, and Bill Duffy J.D. ’82.

for Applied Ethics and a board member of ISLE. “We honor them for fighting on many fronts to protect the long-term health and future quality of life of America’s athletes.”

The Institute of Sports Law and Ethics was founded by Santa Clara Law, SCU Athletic Department, and the Markkula Center for Applied Ethics. Its 25-member board includes distinguished athletes and sports executives.

For more information visit law.scu.edu/sportslaw.

Santa Clara Law By the Numbers 1,000,000 Santa Clara Law Digital Commons Hits Major Milestone

In May, the Santa Clara Law Digital Commons, a free digital archive that contains the academic “output” of the law school, surpassed one million downloads. It contains faculty articles (including working drafts and empirical legal research projects), student journals, student scholarship, archival materials, and other documents. “By making these materials available to the public, we are helping to promote the value of legal scholarship produced at Santa Clara Law, and we hope that it will further widen its academic impact and role in forming public policy,” said David Holt, associate librarian at Santa Clara Law and the administrator of the archive. Help yourself at digitalcommons.law.scu.edu.

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Two Decades of Legal Service

In 1994, Santa Clara Law students decided to volunteer their legal skills to help their community, and the East San José Community Law Center was born. Twenty years later, the renamed Katharine and George Alexander Community Law Center provides about $1.5 million of legal services every year through its unique studentattorney model—without charging its clients one penny. The Center serves more than 1,000 clients per year in the areas of consumer law, immigration law, employment law, and tax matters. See the back cover for details on the 20th anniversary celebration on Oct. 25. More at law.scu.edu/kgaclc.

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#2

IP Program Ranked Second in Nation The online legal magazine Law Street released its 2014 Law School Specialty Rankings, and Santa Clara Law’s IP program tied for second place in the nation, ahead of U.C. Berkeley and Stanford, which tied for ninth place. In the detailed ranking, Santa Clara Law received high marks in several areas including number of IP courses (Santa Clara had the most classes offered of any of the top 10 schools), location (proximity to IP firms), networking, and extracurricular offerings.

For a link to the rankings, see law.scu.edu/sclaw.

STUDENT SPOTLIGHT

Meet Three Fellows

Dean’s Fellow Michael Perretta earned his undergraduate degree in political science from U.C. Berkeley, where he was also on the Division I men’s crew team for four years. He graduated with the highest GPA among all male student-athletes and was named the male recipient of the Neufeld Scholar-Athlete award.

In college, while not rowing, Perretta interned for an attorney at a San Jose based start-up. “The experience piqued my interest in intellectual property and corporate law,” he says. “It also opened my eyes to the boundless opportunities in the Bay Area for attorneys specializing in the area of technology. I aspire to become general counsel of a start-up—or a few of them,” he says.

Why did Perretta choose Santa Clara Law? “I was very impressed by the faculty and their vision for the law school in the upcoming years,” says Perretta. “Everyone I met was very kind and informative. I also was drawn to Santa Clara Law’s phenomenal intellectual property program.”

Dean’s Fellow Yuridia Guerrero was the first in her family to be born in the United States. “Both of my parents emigrated from a small rural town in Zacatecas, Mexico, and I grew up with my mother’s nine brothers and sisters,” she says. She was also the first in her family to attend a university, graduating from U.C. Berkeley in 2012 with a degree in Latin American Studies with a focus in Spanish and Portuguese languages. While at U.C. Berkeley, she worked with various legal clinics aiding low income and migrant communities.

photos by M aria Q uiñ one z

Each year, Santa Clara Law awards full-tuition fellowships to a select few exceptional scholars.

Meet three of this year’s recipients.

Michael Perretta

Yuridia Guerrero

After graduating, she moved to Washington, D.C., where she became a national policy assistant for the League of United Latin American Citizens and later a paralegal for Ifrah Law PLLC. For the past 10 years, in her spare time, she has also been pursuing her love of performing and teaching Mexican folk dance.

She says she chose Santa Clara for its location and for its strong IP and international law programs. She adds that she is also impressed with the variety of clinics and certification programs. “This will give graduates something extra to help them stand out in the work field,” she says.

Guerrero is still considering her career options. “While at Berkeley I dreamed of working with international law firms that focused in Latin America, but after gaining more work experience I have come to realize there are many other branches of law which I would love to explore,” she says.

IP Fellow Ernest Estes majored in electrical engineering with a minor in acoustics at Kettering University and earned a master of science degree

Ernest Estes

in electrical and computer engineering from Georgia Institute of Technology in Atlanta. He spent a number of years in the automotive industry as a General Motors co-op, first in the manufacturing division and later in product develop­ ment, where he wrote his thesis. He also spent a couple of years designing computer hardware and examining patents at the United States Patent and Trademark Office.

“I was attracted to Santa Clara’s High-Tech Law program,” says Estes.

“I knew it had a very good reputation within the intellectual property and broader technology community.

One of my former coworkers, who practiced in the Bay Area, vouched for it even though she attended another law school. Few schools, even those with dedicated intellectual property curriculum, seemed as well positioned to provide opportunities to get involved in technology during and after law school.”

Estes says he plans to practice as a patent attorney. “Eventually I’d like to use my experience in the private sector to get involved with technology policy,” he adds.

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FA CU LT Y NE WS

Faculty on the Move This fall Santa Clara Law welcomed new team members and congratulated others on new positions.

New Senior Assistant Dean, External Relations

Jae Hansen

This summer, Skip Horne returned to Santa Clara Law to serve in the position of senior assistant dean, external relations. In the past at Santa Clara Law, he served as assistant dean for law career services from 1999–2004 and as interim assistant dean from 2009–10. In his new role, Horne oversees alumni relations, Skip Horne career management, and development, and holds responsibility for law school marketing and communications. “During my two previous stints in career services, I got to know and work with so many amazing Santa Clara law students and graduates,” said Horne.

“I am thrilled to be back and look forward to working with Dean Kloppenberg and the rest of the community.” Horne has served as the president of the National Association for Law Placement and the president of the National LGBT Bar Foundation, and has been active with the Bay Area Legal Recruitment Association and the Law School Admission Council. “Skip has a distinguished career in university administration with an emphasis in legal education. He is well-known nationally in law school placement and admissions circles,” said Dean Lisa Kloppenberg. “I am delighted that he will join our senior leadership team.”

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Deborah Moss-West J.D. ’94 has a new role as director of the Center for Social Justice and Public Service. Moss-West brings many years of experience working in the public interest and social justice law sector.

During her tenure as assistant director of the Center since 2008, she helped build the Center and its reputation in Deborah Moss-West the legal community, expanded the J.D. ’94 school’s pro bono programs, launched the Marshall-Brennan initiative (a pipeline program), and with former director Professor Stephanie Wildman pioneered an undergraduate law and social justice class. “Deborah has been an incredible ambassador for us in her external service, including her work on the State Bar’s Commission on Access to Justice,” says Dean Lisa Kloppenberg. “We are also grateful that Professor Margalynne Armstrong will serve as academic director of the center, continuing her years of dedication to social justice and public interest work,” added Kloppenberg.

N AN C Y M ART I N

Professor Sandee Magliozzi is the first associate dean for experiential learning at Santa Clara Law. Among other duties, she will help explore collaborative work and learning opportunities and help develop programmatic and curricular initiatives relating to experiential learning. A member of the Santa Sandee Magliozzi Clara Law faculty since 2006, Magliozzi teaches externship seminars and workshops and focuses on the development of lawyer competencies by helping students leverage their externship opportunities to gain experiences and skills needed for their careers. She often writes and speaks on attorney professional development issues and is a contributing author to The Art and Science of Strategic Talent Management in Law Firms.

New Director of the Center for Social Justice and Public Service

New Director of Global Law and Policy Center Associate Professor Anna Han is the new director of the Global Law and Policy Center. A professor at Santa Clara Law since 1989, Han has been involved with the Center for many years as a director of its numerous summer programs. She started its Shanghai program and has directed programs in Hong Kong, Istanbul, Anna Han Geneva, Oxford, and The Hague.

Han specializes in the areas of Chinese law, corporate law, and technology licensing. She has published widely on topics relating to the developing legal system of the People’s Republic of China, having authored the casebook Doing Business in China, published by West. Prior to joining SCU, she worked as an associate at Heller, Ehrman, White & McAuliffe and, subsequently, as an associate and then partner at McCutchen, Doyle, Brown & Enersen (now Bingham, McCutchen). She has also served as counsel to the international firm of White and Case based in Palo Alto.

K EIT H S UTT ER

New Associate Dean for Experiential Learning

New High Tech Co-Director Assistant Professor Brian Love is codirector with Eric Goldman of the High Tech Law Institute at Santa Clara Law. Love joined the Santa Clara Law faculty in 2012 and has quickly established himself as an influential voice on patents and other intellectual property (IP) topics. Eric Goldman, professor and the current director of HTLI, will remain as co-director, working with Love to jointly lead the Law School’s nationally prominent intellectual property law program. Goldman is reducing his administrative responsibilities due to his wife’s illness.

Love’s research focuses on patent law, intellectual property, and other issues at the intersection of law and technology Brian Love policy (see page 10 for more on his scholarship). Prior to joining SCU, he was a lecturer and teaching fellow at Stanford Law School, where he ran the Law, Science & Technology LL.M. program. He also practiced law as a special counsel with Wilson Sonsini Goodrich & Rosati and as a litigation associate with Fish & Richardson.

“The addition of Professor Love to the HTLI leadership team allows us to expand one of the Law School’s flagship programs and deliver additional value to our students, alumni, and the intellectual property community,” said Santa Clara Law Dean Lisa Kloppenberg.

For more faculty news, visit law.scu.edu/faculty/ faculty-news.cfm.

FACULTY IN THE MEDIA “The Alibaba IPO is a validation of its place in the international marketplace and shows the innovation of Chinese companies.”

—Associate Professor Anna Han, “Quinn: Alibaba Signals That China Is an Innovative Tech Center,” San Jose Mercury News, May 10, 2014

“Yet, even as we voice solidarity with the Nigerian schoolgirls, is it not also time to pay attention to the sexual exploitation of our girls here in the Bay Area? Many hear the term ‘human trafficking’ and mistakenly think of it as a distant threat. Facts tell us otherwise.”

—Professor Margaret Russell, “Perspectives,” KQED Radio, June 2, 2014

“People hire undocumented immigrants and won’t even pay them because they figure, ‘So sue me, you are not going to have any standing in court.’”

—Professor Gerald Uelmen in “State Court Rules Job Protections Cover Workers Using Others’ ID,” Los Angeles Times, June 27, 2014

The MyRedbook.com case “seems like a frontal assault on an issue that prosecutors have not been able to make progress on in the past….[the Communications Decency Act] remains the foundation of the Internet.

We’re still seeing innovation in the Internet community and Section 230 is an integral part of that.”

—Professor Eric Goldman, “Shutdown of MyRedbook.com Sparks Legal Debate,” SFGate.com, July 1, 2014

Our online faculty news page is updated frequently: law.scu.edu/faculty/faculty-news/.

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FA CU LT Y NE WS

100+ Years’ Service to Santa Clara Law A Profile of Three Retirees

Mary Hood B.A. ’70, J.D. ’75 retired in June after 46 years of service. She joined the staff at Heafey Law Library in 1968 as a student assistant and became a full-time employee in 1970. During her tenure at Santa Clara, Hood held a variety of positions in the law library, including reference/acquisitions librarian, head of public services, associate director, and executive law librarian. She also served as the interim library director from September 2011 through January 2014. Her interests include legal research, computers, and access to information. She has taught Legal Research at Santa Clara’s Paralegal Institute and has given numerous presentations on computer-assisted legal research. She has also taught Advanced Legal Research at the Law School. In addition to her SCU degrees, she has an M.L.S. from San Jose State University.

“Mary Hood is a great friend of the Law School community and is a true ‘librarian’s librarian,’” said Professor and Dean Emeritus Donald Polden. “She possesses an extraordinary understanding of the evolving science of law library management, and no one in the business knows more law librarians nationally than Mary. Her expertise, her attention to detail, and her good humor will be missed.”

Julia Yaffee M.A. ’88, M.A. ’97 retired in June after 30 years of service. She joined the Law School in 1984 as an admissions counselor and held the positions of associate director of admission, director of admissions (1984–95), assistant dean for admissions (1995–97), senior assistant dean for student services (1997–2007), and senior assistant dean for external affairs (2007–14). She was also active in many professional organizations: the Law School Admission Council, the Association of American Law Schools, the American Bar Association, the National Network of Law School Officers, and the National Association for Law Placement.

“Julia served the Santa Clara Law community long and exceedingly well in many aspects of our operations, from recruiting students to fostering alumni relationships with the Law School,” said Dean Lisa Kloppenberg. “She made significant national contributions in admissions, development, and legal education circles, boosting the connections and reputation of our school.”

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Professor Nancy Wright J.D. ’80 retired in June after 30 years of service. After joining Santa Clara Law’s faculty in 1984, she served as placement director for five years, and in 1990 she became director of the first-year Legal Analysis, Research, and Writing Program.

She has co-directed Santa Clara Law’s summer programs in Tokyo, Hong Kong, Oxford, Geneva/Strasbourg, and Sydney. In addition, she has served as co-project director of the Katharine and George Alexander Community Law Center. She is well known for her interest and involvement in social justice organizations in the local community, and she often does pro bono work in consumer protection and prisoner’s and children’s rights. Nancy is looking forward to devoting more time to her photography which may be viewed online at http://nancywrightphotogalleries. smugmug.com/.

“Nancy is just a shining example of selfless commitment to our students,” said Bradley Joondeph, associate dean for academic affairs. “She has been a professional ‘mother’ of sorts to hundreds of our students— taking them under her wing, showering them with care and compassion. Law school can be a difficult experience; Nancy was always there to soften the rough edges, to help students get through the rough patches.”

C H AR L ES B AR RY

Mary Hood

Nancy Wright C H A R L ES B AR RY

OTHER RETIREES Several others retired over the summer, including Angelo Ancheta, executive director, Katharine and George Alexander Community Law Center and associate clinical professor; Karin Carter, associate clinical professor; Marilyn Dreyer, senior assistant librarian and catalog librarian; Joan Harrington, director, academic and professional development and associate clinical professor; Patty Rauch-Neustadter, associate clinical professor; and Alan Scheflin, professor. “We are grateful to all of these retiring faculty members for their many years of service to our students and our school,� said Dean Lisa Kloppenberg.

Julia Yaffee C H AR L ES B AR RY

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A CATHEDRAL OF UNDERSTANDING The Value of Faculty Scholarship

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ll faculty members at Santa Clara University are teaching scholars. To be sure, the School of Law’s most immediate objective is always to train our students for careers as legal professionals—professionals with competence, conscience, and compassion. But an essential aspect of the school’s mission is also to add to the world’s store of knowledge. Academia offers a platform for the relatively cloistered, independent pursuit of a better understanding of the world, committed permanently to writing in the form of academic publications. That component of our mission distinguishes universities from a variety of other “teaching” institutions in society.

No doubt, faculty scholarship yields several instrumental benefits. First, it enhances the school’s reputation, nationally and internationally. Professors Love, Macintosh, Oberman, Sloss, and Spitko are renowned in their fields, and their work draws the attention of students, lawyers, applicants, and other academics to our campus. Second, faculty research supports and enhances the quality of our instruction. Engagement with ongoing legal developments—as well as the work of other scholars—broadens a teacher’s knowledge base, keeps her course content current, and ensures that her classes are informed by up-to-date understandings in the field. Third, our participation in the competitive field of academic publishing requires us to remain ambitious, in terms of both our productivity and the originality of our ideas. Fourth, producing articles and books for publication keeps us in touch with our students’ experiences in being judged: every time we submit a law review article for publication, we receive more than 20 rejection letters for every acceptance.

But the ultimate reason for scholarship is not instrumental. It is the production of knowledge for knowledge’s sake. Every work of research is one small brick—perhaps just a pebble—in building a cathedral of a better understanding of the world around us. Each of our individual contributions, judged in isolation, is likely trivial. But the dogged pursuit of original ideas embodies our faith in human progress through rational understanding. And this, after all, is why universities exist in the first place.

—Bradley Joondeph, associate dean for academic affairs, and Inez Mabie, distinguished professor of law

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Professor Brian Love Brian Love’s research focuses on U.S. patent law, with an emphasis on litigation, remedies, and the high-tech industry. “The last few years have been a time of intense interest and change in these areas, to say the least,” Love says. “We have seen multiple billion-dollar patent verdicts, a sharp increase in the number of high-tech patent suits, and an unprecedented level of interest in patent law from the Supreme Court and Congress.”

To keep up with the pace of change, Love’s research efforts since joining the faculty have been fast, furious, and intended to have an immediate effect on patent policy debates. He rates his most important contribution so far as “Expanding Patent Law’s Customer Suit Exception,” an article co-authored with Jim Yoon of Wilson Sonsini Goodrich & Rosati and published last year in the Boston University Law Review. The piece calls for the rejuvenation of an all-but-forgotten patent law doctrine known as the “customer suit exception,” which allows technology manufacturers to defend against infringement claims leveled at their customers. “Making it easier for manufacturers to take charge of patent suits filed against entities

KEITH SUTTER

much further down the supply chain would help protect blameless retailers and consumers from increasingly common nuisance-value patent litigation targeting small businesses that lack the legal and technological sophistication necessary to defend against even the weakest infringement allegations,” Love says. The authors’ suggested reforms were included in two omnibus patent reform bills, one of which passed the House last December.

Attorneys’ fee awards are another deterrent to questionable patent assertion, a subject that recently attracted attention from Congress and the Supreme Court. Entering this area of the patent reform debate, Love collaborated with Christian Helmers of the Leavey School of Business and Luke McDonagh of Cardiff University to carry out a comparative empirical study of patent suits filed in the United Kingdom, where fee awards are routine. Their findings, published this year in “Is There a Patent Troll Problem in the UK?” in the Fordham I.P., Media & Entertainment Law Journal, suggest that the UK’s “loserpays” system is a key reason for the country’s relative lack of abusive patent litigation. In a pair of cases decided in April, the Supreme Court paved the way for more frequent fee awards in U.S. patent suits, but larger patent reform efforts ultimately stalled in the Senate the next month.

One reason for the legislation’s demise was strong opposition from universities, Love notes. In 2013, universities filed almost one hundred patent infringement suits, setting an all-time record both with respect to the total number of suits and the percentage asserting patents related to computing and telecommunications.

Policymakers and scholars have long been reluctant to question the benefits

Brian Love’s research focuses on U.S. patent law, with an emphasis on litigation, remedies, and the high-tech industry.

“The last few years have been a time of intense interest and change in these areas, to say the least,” Love says.

“We have seen multiple billion-dollar patent verdicts, a sharp increase in the number of high-tech patent suits, and an unprecedented level of interest in patent law from the Supreme Court and Congress.”

of university patent ownership and enforcement, but universities’ shift toward filing and enforcing high-tech, rather than bio-tech, patents has raised eyebrows in the tech community. To gather data on the pros and cons of patenting high-tech academic research, Love surveyed hundreds of electrical engineering and computer science faculty at major research universities to learn more about their experiences with university tech transfer programs.

The results of his survey, forthcoming next year as “Do University Patents Pay Off? A Survey of University Inventors in Computer Science and Electrical Engineering” in the Yale Journal of Law & Technology, paint a less than rosy picture of university efforts to patent and license hightech inventions. Respondents told Love that high-tech patents are not

profitable investments for universities, do not spur faculty research, and are of modest benefit to faculty who aim to commercialize their inventions.

In addition to purely academic research, Love has also penned op-eds published in USA Today and the Wall Street Journal, testified during a California Assembly hearing on nuisance-value patent litigation, written a letter to Congress supporting patent reform efforts that was signed by 61 professors, and co-authored a Supreme Court amicus brief joined by 26.

Although patent reform efforts were unsuccessful this term, they will very likely begin again in earnest early next year. “When they do,” Love says, “I hope that my research will again help inform the conversation.”

fall 2014 | santa clara law 11

Professor Kerry Lynn Macintosh Kerry Lynn Macintosh’s scholarship addresses topics in human cloning, stem cell research, and assisted reproduction. Her work focuses primarily on laws that seek to criminalize or restrict biotechnologies, along with the psychological forces behind those laws.

She has written two books on human cloning: Illegal Beings: Human Clones and the Law (Cambridge University Press, 2005) and Human Cloning: Four Fallacies and Their Legal Consequences (Cambridge University Press, 2013). Illegal Beings assumes

that human clones will be born in defiance of anti-cloning laws and examines the likely consequences.

“California and 16 other states have enacted anti-cloning laws that are based on science-fiction stereotypes about clones as copies and artifacts,” she notes. “Once human cloning becomes scientifically possible, people will use the technology, law or no law. The babies who are born will be individuals and ordinary human beings, but anti-cloning laws will stigmatize them as copies and things that do not deserve to exist. The laws

“Once human cloning becomes scientifically possible, people will use the technology, law or no law,” says Macintosh. “The babies who are born will be individuals and ordinary human beings, but anti-cloning laws will stigmatize them as copies and things that do not deserve to exist.”

12 santa clara law | fall 2014

run counter to egalitarian principles and are vulnerable to an equal protection challenge.”

Human Cloning: Four Fallacies takes the analysis a step further by exposing the hidden intuitions that drive cloning fallacies and the laws based upon them. “Psychological essentialism is a heuristic that we humans use to make quick, intuitive judgments about living beings, like cats or dogs,” she says. “We also use essentialism when evaluating individuals. Unfortunately, when we apply the heuristic to biotechnologies like human cloning, it leads us astray.

This is the 21st century; we shouldn’t be regulating biotechnologies based on the unconscious intuitions of our Stone Age brains.”

Macintosh has written articles about laws that seek to curb embryonic stem cell research, including research that combines human and animal cells and genes.

“Stem cell research is valuable and may one day save lives. Opposition to the work is rooted in essentialist intuitions. My scholarship unveils these intuitions and explains why it is a mistake to base public policy on them. Scientists are not creating The Island of Dr. Moreau in a petri dish.”

Finally, Macintosh has also written articles about assisted reproduction and infertility. “On average, [women’s] fertility declines at age 32 and more sharply at age 37,” she states. “In vitro fertilization cannot overcome this decline, which is due to a decline in egg quality. Physicians and teachers of sex education courses should be doing more to alert women to this risk to their reproductive health and happiness.”

For the past 25 years, Oberman has taught criminal law and researched subjects that arise at the intersection of women’s health and criminal law—topics such as pregnant addicts and statutory rape. She has written two books about mothers who kill their children and has worked with lawmakers, doctors, and child protective services to find ways to identify, reduce, and prevent these crimes.

Oberman says: “To date, I’ve refrained from writing about abortion even though the harms growing out of unwanted sex and unplanned pregnancy are at the core of my life’s work. I’ve long felt alienated by the way we talk about abortion in this country. It’s hard for me to feel like I have anything to add to our toxic debate. We line up as pro-choice or pro-life, and any conversation stops there. When it comes to abortion, we seem to have lost the ability to communicate.”

Over the years, she notes, she has noticed the way we limit our conversations about abortion to proclamations about what we think the law should be, as opposed to talking about what we feel about the morality of abortion. Furthermore, she adds, there’s often a gap between our professed beliefs about abortion-related laws and what, given time, we admit to feeling about abortion itself. The gap goes both ways. “For example,” Oberman says, “I remember a student who called herself pro-choice talking about her brother, who has Down Syndrome. She told us how much she loved him and hated the thought that people like him were being ‘exterminated’ by prenatal testing and abortion.” She also has had students who identify as pro-life explain that they plan to use prenatal testing when

they become pregnant because they didn’t see any other option, given how hard it would be to pursue a career if their child were severely disabled.

Oberman’s current research aims to unsettle the reductionist law-based portrayal of America’s abortion debate.

She began her work in El Salvador, where abortion is completely against the law. Unlike the other handful of countries that ban abortion under all circumstances, El Salvador prosecutes the crime of abortion with some regularity—a situation that allowed her to engage in conversations that venture beyond the theoretical.

Oberman visited women incarcerated for abortion and has traveled to meet their families. She interviewed lawyers, judges, doctors, nuns, and activists, learning much about the contemporary challenges inherent in enforcing an abortion ban and also about the extent to which the law affects the availability and practice of abortion.

“El Salvador helped me to see the U.S. struggle over legalized abortion through fresh eyes,” Oberman says.

“Despite or perhaps because El Salvador is another country, with a culture and a socioeconomic reality far different from our own, my research there led me to wonder about our intractable debate over abortion. I became determined to understand the beliefs that shape Americans’ dialogue with abortion.”

Finding it impossible to get a sense of these issues by reviewing surveys and statistics, she decided to focus on two distinct abortion-related “climates”—specifically, Oklahoma, a state with a well-established and vigorously pro-life legislative agenda, and California, which has an equally consistent pro-choice record.

Currently, she is interviewing many

K EI T H SU T T ER

Professor Michelle Oberman

“El Salvador helped me to see the U.S. struggle over legalized abortion through fresh eyes,” Oberman says.

“My research there led me to wonder about our intractable debate over abortion. I became determined to understand the beliefs that shape Americans’ dialogue with abortion.”

of those on the frontlines of the U.S. abortion war: volunteers, legislators, doctors and religious leaders.

Exploring these diverse perspectives, Oberman is writing a book that exposes the inaccuracy and the high cost of casting the abortion debate as a grudge match waged in headlines and sound bites. The conversations and stories captured in the book are intended to inform rather than resolve the abortion debate. Due out in 2016, the book will provide a catalyst for reflection and perhaps the first tentative steps toward genuine, civil discourse about abortion.

fall 2014 | santa clara law 13

Professor David Sloss David Sloss’ scholarship challenges the conventional wisdom about the relationship of international law to U.S. law. For example, conventional wisdom holds that application of international law by U.S. courts is a novel, recent development. In a forthcoming article, Sloss uses empirical data to demonstrate that before the Civil War the U.S. Supreme Court applied international law

KE IT H S UTT E R

Sloss argues that judicial application of international human rights law, as a substitute for U.S. constitutional law, would actually promote democratic values.

14 santa clara law | fall 2014

much more frequently than it applied constitutional law. (“Polymorphous Public Law Litigation: The Forgotten History of Nineteenth Century Public Law Litigation” in the Washington and Lee Law Review, forthcoming November 2014.) Only in the 20th century did the Supreme Court begin to apply constitutional law more frequently than international law.

Conventional wisdom holds that “traditional” international law focused exclusively on nation-states.

According to this view, individuals did not become “subjects” of international law until after World War II. Professor Sloss’ scholarship demonstrates the falsity of this myth. Throughout the 19th century, the dockets of U.S. courts were filled with cases in which judges applied international law to protect individual rights. For example, federal courts relied heavily on international law to resolve disputes about ownership of real property in areas that the U.S. acquired from other countries by treaty. (Most of the current territory of the United States was initially acquired by treaties.)

Also, in the late 19th and early 20th centuries, international law featured prominently in cases involving the rights of Chinese immigrants in the United States.

Nowadays, many people criticize application of international law on the grounds that it is anti-democratic.

Domestic law is “made in America,” they say, whereas international law is made elsewhere. Sloss argues that judicial application of international human rights law, as a substitute for U.S. constitutional law, would actually promote democratic values.

(See “Using International Law to Enhance Democracy,” in the Virginia Journal of International Law (2006).)

“The basic argument is simple,” he says. “Modern constitutional law

is undemocratic because unelected Supreme Court Justices create the rules of constitutional law, decisions under which “we the people” are forced to live. In contrast, judicial application of international human rights law is more consistent with democratic principles because Congress can override judicial decisions based on international law, but Congress cannot override judicial decisions based on constitutional law.”

Sloss is currently writing a book on treaty supremacy—the rule, codified in the Supremacy Clause (Article VI of the Constitution), that treaties supersede conflicting state laws. From the Founding until World War II, U.S. courts regularly applied the Supremacy Clause to invalidate state laws that discriminated against foreign nationals in violation of U.S. treaties. When the United States ratified the UN Charter in 1945, it undertook a treaty obligation not to discriminate on the basis of race. Civil rights lawyers—led by future Supreme Court Justice Thurgood Marshall— urged courts to apply the UN Charter and the Supremacy Clause to invalidate racially discriminatory laws. Instead, the California Supreme Court held that the Charter’s antidiscrimination provision was “not self-executing,” meaning that courts could not apply the Charter to invalidate discriminatory laws. That decision, by contravening the text of the Supremacy Clause, repudiated 150 years of consistent judicial precedent in treaty supremacy cases. Even so, other courts followed the California Supreme Court’s decision. The net result was a de facto constitutional amendment that modified the Constitution’s treaty supremacy rule by creating a novel exception to the Supremacy Clause for “non-selfexecuting” treaties.

E. Gary Spitko has published extensively in the areas of arbitration, employment law, law and sexuality, and donative transfers. A common thread running through much of this scholarship is a focus on how the law leverages social understandings and influences their evolution. Spitko’s scholarship has focused on how social bias in the law disadvantages “cultural minorities”—those persons “whose core religious, political, or social values and beliefs differ meaningfully and substantially from majoritarian norms.”

Examples of such persons include the “abhorrent testator” who chooses to leave her estate to a religious “cult,” an orthodox Jewish couple whose relationship is fracturing and who seek to apply Jewish law to the resolution of their child custody and visitation dispute, and the gay managerial employee who finds himself accused of same-sex sexual harassment.

Arbitration can serve such cultural minorities as a safe harbor from majoritarian bias, he says, serving simultaneously as a laboratory for law reform and as an instrument of systemic change. “My scholarship has addressed some of the troubling issues that arise when one designs and uses an arbitration process that is conscious of the relationship between cultural and legal norms and such factors as race, religion, sex, or sexual orientation,” he says.

With co-author Sarah Rudolph Cole of the Ohio State University College of Law, Spitko has explored how the law might distinguish between normatively desirable and undesirable considerations of such factors in the selection of an arbitrator.

His nearly completed book, AntiGay Bias in Role Model Occupations: Employment Discrimination As a Means for Social Cleansing, argues that

KEITH SUTTER

Professor E. Gary Spitko

“My scholarship has addressed some of the troubling issues that arise when one designs and uses an arbitration process that is conscious of the relationship between cultural and legal norms and such factors as race, religion, sex, or sexual orientation,” says Spitko.

systematic employment discrimination against openly gay people in role model occupations has been used with the intent to disassociate gay people from certain positive qualities and values by excluding gay people from the “public social spaces” that identify and teach whom society respects and whom members of society should seek to emulate. Such discrimination also has been used with the intent to strengthen the association of these positive qualities and values with the heterosexual majority and the institutions that the heterosexual majority holds dear. Spitko first began to develop some of these ideas in a law review article published in 2012 in which he examined the century-long history in the United States of excluding openly gay people from military service; that article concluded that the dominant purpose of this exclusion was to preserve the masculine identities of the military and its heterosexual servicemen.

Spitko also is currently finishing two law review articles that will be published next year. The first

advocates for a restructuring of the relationship between federal arbitration law and state public-policy-based employment arbitration doctrine to safeguard the public policies that ground state regulation of the employment relationship. The second argues for a reconceptualization of the nature of a will with the goal of ensuring a firmer legal foundation for the enforcement of testator-compelled arbitration provisions. In 2015, he will turn his attention to the first in what he plans to be a series of projects that explore certain intersectionalities in employment discrimination and that consider whether certain doctrines that have developed in the context of Title VII of the Civil Rights Act of 1964 and the Age Discrimination in Employment Act should be reworked or abandoned in the context of sexual orientation discrimination litigation.

Editor’s Note: See Page 32 for an essay by Santa Clara Law Professor Patricia Cain, a national expert in federal tax law and sexuality and the law.

fall 2014 | santa clara law 15

EXTRAORDINARY

RELIEF

A U DR EY R EDM O N D

16 santa clara law | fall 2014

CHA R LO T T E CHINNE RY

By SUSAN VOGEL

After years of work by a huge team, including students and attorneys at Santa Clara Law’s Northern California Innocence Project, George Souliotes is finally free.

I

n the early morning hours you are awakened by a phone call. Your rental home is on fire. You rush over and see it still burning. You ask about your tenants, Michelle and Daniel Jones, and their two children, 8-year-old Daniel, Jr., and 3-year-old Amanda. The police refuse to give you any information about them or the cause of the fire ... and they tell you to go home.

Later that morning, a knock at your door. You invite the police in.

You cooperate with them all day following the blaze, which you learn has killed 31-year-old Michelle and the two children. (The father was not at home at the time.) The police use a hydrocarbon detector on you and it gives positive alerts for “combustible vapors,” so they bag your clothing and shoes. At the end of the day, the police arrest you. You are sure it is a big mistake that will be cleared up quickly.

But six months later you are still in the Modesto jail.

Your life as a nearly retired contractor, weekend ballroom dancer, and a landlord ends, and your life as a convicted arsonist and triple murderer has begun.

Left, NCIP Legal Director Linda Starr and a free George Souliotes share a hug. Right, George Souliotes walks out of prison and into the arms of his son, Aleko.

fall 2014 | santa clara law 17

Norbert von der Groeben

THE NORTHERN CALIFORNIA egregious injustices, the staff focuses INNOCENCE PROJECT on cases with long sentences: mostly INTERVENES murder, attempted murder, and sexual For the next 17 years, George Souliotes— assault, says Starr. arrested in 1997, convicted in 2000 and “If we see a possible valid case, we sentenced to life in prison without the get documents, appellate briefs, talk to possibility of parole—battled a system former lawyers,” says Starr. “We keep that in retrospect seems Kafkaesque, investigating until we exhaust all the a nightmare of police misconduct, possibilities. If there is no DNA to test, impossible eyewitness testimony, no witnesses we can find, or if we turn troubling expert evidence, and seemingly up evidence that supports guilt, we close insurmountable procedural obstacles. the case.”

But thankfully, as George Souliotes In 2001, an unusual request arrived. dodged trouble at Salinas Valley State The case of George Souliotes seemed Prison with the grace of a ballroom different from the start. “Everyone dancer, science was replacing the believed he was innocent,” says Starr. hunches and impressions that had And not just his family, who had been been offered as science to the jury that steadfast in their belief in his innocence convicted him. and unrelenting in their efforts to have The Innocence Project, established his case reviewed. “Everybody who was in 1992 by New York lawyers Barry involved in his case said he didn’t do C. Scheck and Peter J. Neufeld, has it—people experienced in the criminal focused on exonerations through use justice system, lawyers. In many cases, of DNA evidence. Similar projects people are reluctant to talk about a case were established across the country that they were involved in 10 to 20 and internationally, and an Innocence years ago. In this one, they were eager Network developed. As conviction after to,” says Starr. The fire scientist who conviction was overturned, the haunting had testified for the defense in the first feeling arose—how many wrongful trial, now gravely ill, wanted to talk to convictions exist in which there is no them from his deathbed in a nursing DNA to demonstrate home. “He said a terrible that they were wrongful? injustice had happened Santa Clara Law in this case,” says Starr. recognized the value “He provided us with a in teaching students declaration that we used through hands-on work when we started litigating on high stakes cases as the case. Unfortunately, well as the huge need for he died years before he such efforts. In 2001, could see Mr. Souliotes Cookie Ridolfi and win his release.”

Linda Starr co-founded As the students the Northern California and attorneys “peeled Innocence Project at back the layers of the Santa Clara Law (NCIP). case,” talking to experts, David Onek, NCIP executive Today, Santa Clara Law reviewing the trial students and NCIP staff director transcripts, the case vet 800 to 1,000 requests that arrive became more and more troubling, says annually from inmates, their families, Starr. and their lawyers. It’s “a giant triage project,” says NCIP executive director FIRST IMPRESSIONS David Onek.

Starr traveled to Salinas Valley State Because the process takes years, and Prison to meet Souliotes. When asked because NCIP aims to address the most about her first impressions, Starr says she 18 santa clara law | fall 2014

“tries to avoid forming impressions based on one meeting.” In fact, the police’s first impressions of George Souliotes were what set in place the events that led to his conviction.

Arson investigations, historically, have been far more reliant on impressions than on science. A crucial factor is a person’s looks and behavior after a fire. In the notorious Texas case of Cameron Todd Willingham, which is fueling a new wave of opposition to the death penalty, fire investigators quickly marked a father of three as the murderer of his three young daughters based on a skeleton tattoo on his bicep, a Led Zeppelin poster in the burned home, and their impression that he was less than remorseful. He was executed in 2004.

“If you are too distraught, police are suspicious and if you are not distraught enough, they are suspicious,” says Starr.

“The police characterized Souliotes as not distraught enough.”

The investigators immediately saw signs that the fire burned hotter than a “normal” accidental house fire: deep floor burns and burns appearing in what they read as “pour patterns,” low areas burned, and vinyl kitchen tiles with separation and curled edges. From this they concluded that the fire had been set.

An apparent motive appeared.

Souliotes’ tenants had given him notice they would be moving out and had not paid their last month’s rent. Souliotes had gotten a court order requiring them to pay, but at a hearing, he offered to allow them to stay over Christmas. He had insurance on the house, which police were told—wrongly, it later turned out—was under foreclosure.

Investigators concluded that he started the fire to get rid of the tenants and collect insurance money to save himself from financial ruin.

EVIDENCE APPEARS The morning after the fire, a neighbor, 19-year-old Monica Sandoval, approached a police officer. She said she had been on her balcony the night

“If we see a possible valid case, we get documents, appellate briefs, talk to former lawyers,” says Linda Starr, NCIP clinical law professor and legal director. “We keep investigating until we exhaust all the possibilities. If there is no DNA to test, no witnesses we can find, or if we turn up evidence that supports guilt, we close the case.”

NCIP Research Assistants Julianna Mancini and Reed Wagner discuss a case.

C H ARLE S BAR RY

fall 2014 | santa clara law 19

NCIP Stats

2001

Established by Santa Clara Law Professor Kathleen (Cookie) Ridolfi and Clinical Law Professor and Legal Director Linda Starr

11,625

Total new requests received since 2001

17

Victories since the founding of the NCIP

218

Collective years spent in prison

by NCIP exonerees

700+

Santa Clara Law students educated through NCIP since 2001

5,500+

Law student hours this last academic year (2013-2014)

5,800+

In-house volunteer lawyer hours this last academic year (2013-2014) ONE COST OF WRONGFUL CONVICTION The two figures below represent the time spent by these two firms on just this case.

$3,566,724.45 Total value of work by Orrick, including 8,968.70 attorney hours and total disbursements of $356,317.35.

$957,055.50 Total value of work by Morrison & Foerster, including 1,539.25 attorney hours and total disbursements of $118,875.50.

20 santa clara law | fall 2014

of the fire at 3:30 a.m. waiting for her boyfriend to come home. That’s when she saw a man in his 30s or 40s cruise the house 10 to 20 times in a “van” or a “Dodge Caravan” or possibly a Winnebago. (“The number of times Sandoval saw the vehicle became greater and greater as time went on,” says Starr.)

Sandoval said she saw the man get out of the vehicle and run behind the house carrying a white bag. She described what he was wearing down to the color of his shoes. Soon after, she was asked to identify the man in a photo lineup but said she would not be able to. Indeed, when shown the photos, she did not identify Souliotes, who was 56 years old, as the man she saw that night.

At Souliotes’ preliminary hearing six months later, Sandoval testified that she had seen his photo in the newspaper identifying him as the arsonist. But even then, she did not initially identify Souliotes, sitting in the courtroom in prison clothes, as the man she saw in the Winnebago or running behind the house that night. It was only after a break in the hearing and a conversation with the district attorney (DA) that she provided the ID the prosecutors sought.

To support their conclusion that this was an arson fire, investigators had lab tests conducted. Those lab tests revealed a medium petroleum distillate (MPD—substance that can be found in liquids used as an accelerant, as well as in common house-hold products like cleaners, and in shoe glue) on Souliotes’ shoes and also at the fire scene. All of this made investigators believe that Souliotes had walked through the house that night pouring an accelerant while the Jones family slept.

TRIALS I & II At the first trial in 1999, prosecutors presented two arson experts who testified that they were certain, based on the burn evidence, that the fire was arson and that their conclusion was sealed by the MPDs found on Souliotes’ shoes and in the living room.

The defense put on 17 witnesses who challenged this testimony and presented evidence that Souliotes was financially sound, the house was not under foreclosure, and that he had a purchase offer of more money than any insurance proceeds. Experts discredited Monica Sandoval’s testimony and presented evidence that the fire was likely caused by a faulty gas line.

After deliberating for several days, the jury came back hung.

Almost a year later a second trial took place while Souliotes remained in custody. Souliotes’ same defense attorney promised jurors he would be calling all of the witnesses who had testified at the first trial and previewed what their exculpatory testimony would be.

Seeking the death penalty, prosecutors focused on the MPDs, telling the jury, “the shoes tell the tale.”

After the prosecution concluded its case, the defense rested without calling a single witness. The jury took just three and a half hours to find Souliotes guilty, and he was sentenced to life in prison without parole.

Souliotes and his family learned about the Innocence Project through the news and on television. They wrote to Innocence Projects all over the country, including in New York, Chicago, and Texas, before contacting NCIP. EXHAUSTING REMEDIES Students, says Starr, typically come to law school with pretty “high expectations of the criminal justice system.” They often arrive at the NCIP thinking “you prove innocence and the person walks out of prison to a bank of reporters,” says Starr.

Cases like Souliotes’ can shake those beliefs to the ground.

First, there are the endless procedural challenges. Santa Clara Law students began working on the Souliotes case, under the direction of Starr and other NCIP attorneys as well as volunteer attorneys from Orrick

Top: From left: NCIP Legal Director Linda Starr and Assistant Legal Director Maitreya Badami assess evidence.

Bottom: George Souliotes (center) and his attorney Jimmy McBirney (left) are surrounded by reporters as Souliotes walks out of prison for the first time in 16 years.

C H A R L ES B AR RY R O ND A S WE NS ON

Herrington & Sutcliffe, in 2003. For many it was their first time putting their legal education into action. “They have studied the law, read the cases, they have done simulations, but they don’t really understand much about the law as a means of problem solving,” says Starr.

“We watch them make that shift from understanding the law to figuring out what to do—how to gather the facts, whom to talk to, what is the procedure, what is the pleading.”

From 2003 to 2006, law students helped litigate the case, filing petitions in the state Superior Court, Court of Appeal, and Supreme Court.

When those petitions failed, they turned to the federal courts, filing a petition in 2006. In response, the state argued that Souliotes’ petition was filed five days late under the Anti-Terrorism and Effective Death Penalty Act, which resulted in another six years of legal proceedings in federal court. (For detailed procedural history, please see the case timeline on the website: www.ncip. scu.edu.)

Finally, the Ninth Circuit ordered the federal district court to hold a hearing on Souliotes’ actual innocence claim, where he would attempt to prove that “it is more likely than not that no reasonable juror would have convicted him in light of the new evidence.”

Proving this would be the “gateway” that would allow him to then present his ineffective assistance of counsel claim based on his attorney’s failure to present a defense in his second trial. Because of Souliotes’ advanced age and health concerns, the actual innocence hearing was scheduled to begin three months later, on January 24, 2012.

fall 2014 | santa clara law 21

CHALLENGING EYEWITNESSES Jimmy McBirney, Souliotes’ lead counsel from Orrick who began working on the case as a U.C. Davis 2L summer associate, did not expect to find himself in a 25-year-old, unregistered and unlicensed, hot-wired Winnebago with defunct steering and a missing headlight, cruising a Modesto residential area after dark. He had undertaken the task of coordinating a reenactment of the fateful

Students working on this case learned that early conclusions can create “tunnel vision,” says Linda Starr, NCIP clinical law professor and legal director.

"You go to the scene, immediately decide it’s arson based on factors that are not based on science, and instead of investigating what caused it, you start to look at who caused it.”

night to assess the credibility of Monica Sandoval’s testimony that she saw Souliotes’ Winnebago cruising past the rental home on the night of the fire.

“The Winnebago had somehow been reconfigured so that exhaust from the engine blew straight into the cabin,” recalls McBirney. “It had no blinkers and no registration. The day started with the hotwiring overheating and singeing my jeans.” Starr was in the back of the Winnebago, and, on the balcony where Monica Sandoval had stood 14 years 22 santa clara law | fall 2014

earlier, was Carly Baletto, a student at NCIP, as the witness, along with Maitreya Badami, NCIP assistant legal director, and a videographer.

McBirney, who by now had logged one summer and five years on the case and was now lead attorney, was also preparing for the actual innocence hearing. He says, “We had three months to dig through 10,000 pages of transcripts, prepare and file 11 expert reports, litigate pre-hearing motions, and prepare to try the case. The court had to consider all evidence, old and new, so we needed to present all of our new evidence and debunk the discredited old evidence that the prosecution presented at trial. We retained 11 experts, including a cause and origin expert for the fire, a chemist for the shoes, an eyewitness identification expert, and an expert in police practices.” And the reenactment was key.

The reenactment demonstrated that there was no way Monica Sandoval could have seen what she testified to.

The students also learned that early conclusions can create “tunnel vision,” says Starr. “You go to the scene, immediately decide it’s arson based on factors that are not based on science, and instead of investigating what caused it, you start to look at who caused it.”

Sandoval’s testimony also demonstrated how law enforcement can influence a witness’ testimony. For example, the first time police officers took Sandoval by Souliotes’ house, she stated that the Winnebago was not the vehicle she had seen cruise the house more than 10 times the night before, but after they took her by again, when police were on the property, she provided the ID that supported their theory.

The students also learned that witnesses might have their own agendas.

At the time of the fire, Sandoval had pending charges for stabbing her boyfriend on another night he came home late. When she became the state’s star witness, those charges were dropped.

JUNK SCIENCE Santa Clara Law student Reed Wagner has worked for NCIP for two semesters, first as a student and then as a research assistant. Wagner is most troubled by the willingness of the criminal justice system to accept “junk science.” “An expert bases a conclusion on bad forensic science, and obtains a conviction. That conviction validates the science. It’s circular logic. This really grabbed me,” he says.

Sometimes fire experts shun science altogether. In a newspaper article in the Modesto Bee, a retired fire investigator from Stockton expressed his disdain for the “new” fire science being proffered in the Souliotes appeals: “If you started your career at the end of a hose, you’ve got that wealth of experience. Nobody can come in off the street and do what you do.”

Scientists, however, began doing just that. Well before Souliotes’ conviction, a 1992 publication, National Fire Protection Association 921 Guide for Fire and Explosion Investigations, proved that many of the assumptions fire experts had made for decades were simply incorrect.

Most dramatically, most of the signs fire experts used to conclude that accelerants were used in a fire were signs also present in “normal” accidental fires that result in flashover, a phenomenon in which a fire contained to a space achieves such high temperatures that anything can combust.

In one study by the Arson Research Project, experienced fire investigators were asked to assess whether samples of burned material showed visual evidence of accelerants. Their accuracy rate was 50 percent, no better than a random guess or a coin toss.

Yet fire experts were slow to budge from the comfort of their profession, so it took decades for this science to reach the courtroom. Their testimony continued to send people to prison and even to death (like Cameron Todd Willingham, in Texas in 2004). Paul Bieber, a fire expert who submitted an expert report for the defense in the

EVERYTHING THAT CAN GO WRONG For students, the Souliotes case has been a primer on everything that can go wrong in the justice system, says Starr.

A high-profile alleged heinous crime: the death of a mother and two young children. Public pressure to arrest a suspect. An eyewitness led by police and pressed to ID the suspect, reliance on faulty science, and a defense attorney who presents virtually no defense.

“Students are often surprised by how casual the criminal justice system seems—they are surprised someone can be sentenced to life based on one person’s unreliable testimony, and they are surprised that lawyers don’t always do what they are supposed to do—both prosecutors and defense attorneys,” says Starr. “They are surprised that judges and juries trust the testimony of doctors and scientists even if the science has been proven to be unreliable.”

LIGHT AT THE END Souliotes had been in jail for three years and in prison for more than 13. The research, appeals, trials, and motions on his case had been going on for almost 17 years. Four months after the threeday actual innocence hearing in January 2012, a federal magistrate concluded that no reasonable juror would have convicted Souliotes given the state of the evidence today. Two months later Chief U.S. District Judge Anthony W. Ishii

DO N AL D SAT T ER L EE

Souliotes case, called the investigation into the fire at Souliotes’ rental house “an amateurish fire investigation [that] quickly escalated into a full-fledged witch hunt.”

New science also cast doubt on the shoe evidence. Urged by Souliotes’ sister, the chemist who was consulted by Souliotes’ trial attorneys, John Lentini, conducted additional tests and was able to demonstrate a difference between the MPDs on Souliotes’ shoes (which are common in some shoe soles) and those found in the house.

Morrison & Foerster lead trial counsel James J. Brosnahan (left) hugs George Souliotes (right) upon his release from prison on July 3, 2013.

upheld the findings, requiring that the state either release Souliotes or retry him.

Souliotes had proven “actual innocence.”

“Legally all that proving Souliotes’ innocence did was get him around the allegation that he missed the habeas corpus filing deadline, but he still had to prove a constitutional basis for habeas corpus relief,” says Starr. McBirney says he was “hopeful that the case was over, that the state would do the right thing” and set Souliotes free. “Unfortunately they did not, so we were faced with litigating the constitutional claims, including ineffective assistance of counsel.”

After more than another year of litigating further procedural issues and Souliotes’ constitutional claims, the federal magistrate granted Souliotes habeas relief on his ineffective assistance of counsel claims and ordered the state to release or retry him within 90 days. Judge Ishii upheld that decision as well.

“At this point I was almost sure that the state would release him, but incredibly the state elected to retry Souliotes,” McBirney says.

The stakes could not have been higher on May 28, 2013, the day Santa Clara Law students began their summer NCIP class working with Morrison & Foerster’s legal team headed by famed litigator James Brosnahan. The team was awaiting a decision from the U.S. Supreme Court in McQuiggin v. Perkins; its outcome would determine whether Souliotes would be able to proceed with his case or be shut out, likely spending the rest of his life in prison.

That very day, the court issued its ruling, written by Justice Ginsburg for a 5-4 majority, that a proper showing of “actual innocence” is sufficient to circumvent the Anti-Terrorism and Effective Death Penalty Act’s (AEDPA) statute of limitations. Justice Scalia authored a dissent. Starr says, “This was an unbelievable demonstration to the students of the relevance of the U.S. Supreme Court and how, if that decision had been 4-5 instead of 5-4, things could have been so different.”

spring 2014 | santa clara law 23

The team then took on the task of preparing, in less than two months, for “a massive triple murder trial for a fire that happened 12 years earlier,” says McBirney. “There were two law firms and NCIP working almost around the clock. Through motions in limine [which keep out certain evidence], almost all junk evidence was excluded,” he says. At that point, “the DA realized they had a problem. They came to us and offered that Souliotes plea to three counts of voluntary manslaughter and one count of arson and go home the same day.”

But Souliotes said he “would rather die in prison than plead guilty to setting a deadly fire he had nothing to do with.”

TRAINING GROUND While the complex procedural journey was a nightmare for Souliotes, it was an incredible training ground for Santa Clara Law students, Starr says, culminating in the opportunity to work with Jim Brosnahan. “He is one of the top litigators in the country, called a ‘Lion of the Trial Bar’ and has a reputation for not only being a superb litigator for his clients but also reaching out and taking some really interesting and challenging cases. That students got to work so closely at such a high level of practice was remarkable. Students sat in on strategy sessions with the Morrison and Foerster legal team (including two

“Students are often surprised by how casual the criminal justice system seems—they are surprised someone can be sentenced to life based on one person’s unreliable testimony, and they are surprised that lawyers don’t always do what they are supposed to do—both prosecutors and defense attorneys,” says Linda Starr, NCIP clinical law professor and legal director.

The judge set a trial date of July 8, 2013, but on July 1, the DA offered another plea deal in which Souliotes would plead no contest to three counts of involuntary manslaughter based on failing to maintain working smoke alarms in the rental home, and the arson charge and all allegations of intentional wrongdoing would be dropped. The state’s appeal of the federal court’s habeas corpus ruling was also dismissed as part of the deal. This time, in order to avoid further months in custody during a lengthy retrial, Souliotes reluctantly accepted the plea.

On July 3, 2013, after an all-night immigration hold, Souliotes walked out of prison. “It was unbelievable,” says McBirney. “The happiest day of my life.”

24 santa clara law | fall 2014

partners, associates, summer associates, paralegal, support staff—all amazing professionals) in addition to Jim. They were able to learn how to manage such a team and see how they worked, very collaboratively and with the long, hard hours necessitated by the fast timeline.

They had the opportunity to draft motions on cutting edge areas of law, moot them in our class, and then go to court and watch them be argued by some of the finest litigators in the country,” Starr says.

“Jim arranged for there to be a mock trial with a real jury consultant, and the students played the roles of the witnesses and then got to watch the juries deliberate.”

At the mock trial, Santa Clara Law student Clare McKendry, now a 3L, played Sandoval and endured

cross-examination by Brosnahan. She says she got a critical take-away for future practice: “Anytime something is happening far away in the dead of night we are going to have concern about witness IDs.” The mock jury deliberations were also eye-opening for the students. Says McKendry, “Watching the jurors made clear how difficult it can be to present evidence in a way that all the jurors will understand. Between complicated scientific evidence and explaining how the burden of proof works in a trial, it is quite a difficult task to get it all out coherently.”

SOULIOTES LEGACY—A REVOLVING DOOR As Souliotes tries to recover some of the 17 years he lost with his family and friends, students touched and motivated by working on his case are preparing for their careers. Many have chosen careers in which they can help avoid wrongful convictions.

Starr says that “Students start with us and they don’t want to leave. They become research assistants, volunteers, and then they come back when they are practicing to do pro bono work.”

Santa Clara Law 3L Reed Wagner is such a student. With an undergrad degree in the dramatic arts, he was unsure of his career path when he arrived at law school. As a law student, he spent two semesters with NCIP and is now a research assistant. Add to that four criminal law classes he never expected to take, and he’s hooked. The intense nature of the practice is something that Wagner relishes. He is spending this summer at the Stanislaus County Public Defender’s office in Modesto.

McKendry says she is another student who “drank the post-conviction cocktail.” With a degree in gender studies and creative writing from Carnegie-Mellon, she toyed with intellectual property but decided she “wanted to do more with people … a summer experience doing civil litigation

Linda Starr presents George Souliotes with the Cookie Ridolfi Freedom Award at NCIP’s 2014 Justice for All Awards Dinner. Souliotes was honored for his courage, fortitude, and grace in facing and transcending gross injustice.

NO R B E RT V O N D E R GR O E B E N

bored me to tears,” she said. She chose NCIP based on a desire to get clinical experience and instantly “fell in love with it.” Like Reed, she maxed out the clinic and became a research assistant.

Through NCIP she met Megan Crane, who left her job at Orrick to work for the Habeas Resource Center in San Francisco. McKendry is spending her summer there and plans for a career in post-conviction work.

“It’s very clear how well NCIP prepared me for criminal justice appeals and post-conviction work,” McKendry says. “I’m miles ahead. Give me a file and I will spot the ineffective counsel and Brady violations right off.”

NCIP, says 3L intern Moira Cullen, “puts a human face on the system’s potential for injustice.” Classmate McKendry says she saw this on her first trip to a prison. She interviewed an inmate at Folsom Prison who was from her town. “He was a shell of a human,

in level four security, so we had to talk through the phone. He grew up less than a mile from my house. I thought: this is why we need public defenders, this is why we represent these people … because everyone deserves a shot.”

“The NCIP also shows students the ‘24/7’ nature of criminal defense,” says Cullen. “The client is always somewhere in a defense attorney’s mind, especially a client who is unjustly accused or unjustly incarcerated.”

Starr says that that even if students don’t land in criminal law, the experience of working at NCIP is life changing.

“It makes students understand that they have to question, that they can’t rely on assumptions and can’t become complacent. It makes them more skeptical of the system, but thankful we have it.”

For those going into criminal defense or planning on being a prosecutor, says Starr, “it reinforces just how important it is to do things right

the first time, because after that it’s very, very difficult to undo it.” Onek, NCIP’s executive director, calls the Souliotes case "a great example of the dedication of our staff, our students, and our pro bono partners. It takes a tremendous amount of work, and a tremendous amount of resources, to ensure that justice is served in cases like this one.”

Susan Vogel is an attorney who has written for Santa Clara Law publications for more than 15 years.

To donate or learn more about NCIP, please visit ncip. scu.edu.

fall 2014 | santa clara law 25

NCIP ALUMNI PROFILES

Meet two Santa Clara Law alumni who say they were deeply changed by their work with the NCIP during law school.

Chris Boscia

M

ost SCU students who work at NCIP are drawn to criminal defense work. So was Chris Boscia.

But now, he is using what he learned about forensic science at NCIP to try to overhaul a statewide system of DUI prosecutions that he is convinced is seriously outdated and subject to challenge.

Boscia first worked with NCIP in 2007 during the summer after his second year of law school. “I was hooked on criminal law and policy from the moment I took the NCIP course,” he says. “Meeting wrongfully convicted individuals put flesh and bones on a system that can be machinelike in its ability to dehumanize participants.” He gravitated to criminal defense. “After working at NCIP, I had a soft spot for helping the accused,” he says.

The former high school theology teacher spent his last two years of law school (he attended the evening program) working full-time for the California Commission on the Fair Administration of Justice. “The Commission examined the causes of wrongful conviction in California and made recommendations on how to improve the system,” he says.

“Through the Commission I interacted with dedicated defense attorneys and prosecutors striving to improve our criminal justice system.”

After graduating in 2008, Boscia was hired by NCIP to work on the feasibility study that would become Santa Clara Law’s Veritas Initiative. It examined thousands of California criminal cases for prosecutorial misconduct. In 2010, he became a staff attorney at NCIP on

26 santa clara law | fall 2014

the DNA Project and helped found the eyewitness identification initiative.

Then his career took a turn. “While working for NCIP and the Commission, I had the opportunity to push for reforms to the criminal justice system in California. However the deeper I invested myself in the policy issues, the more I realized that the best work I could do to improve the system was to become a prosecutor.”

been performed using the more up-todate procedure.”

For Boscia, victory was not enough.

He went public with the warning that California’s DUI testing is not up to international standards and needs to include a more accurate and precise way of taking measurements. These deficiencies, said Boscia, could threaten the 200,000 DUI cases that California prosecutes annually.

“NCIP has had a profound effect on my career, my academic interests, and my commitment to pursuing justice.”

—Chris Boscia J.D. ’08

Boscia joined the Contra Costa County District Attorney’s office in May 2010, and then the Santa Clara County District Attorney’s office in 2011. His first year in Santa Clara, as a brand new Deputy District Attorney, he had the opportunity to put his skills to the test.

He was assigned to prosecute Jaskaran Gill, a Santa Clara Law student who was pulled over driving more than 100 mph on 880 in San Jose. His blood alcohol level tested at .14, nearly twice the legal limit. His defense attorneys, however, brought a motion in limine arguing that the lab’s testing methods were outdated and the test results inadmissible.

The San Jose Mercury News reported “Gill’s novel defense tactic failed, thanks to a dedicated young prosecutor who won an epic battle with the law student’s lawyers—and to the county crime lab, which demonstrated that Gill would be considered drunk even if the test had

Boscia authored a 32-page article, “Strengthening Forensic Alcohol Analysis in California DUI Cases: A Prosecutor’s Perspective,” published earlier this year in the Santa Clara Law Review. He analyzed the history of blood alcohol testing and proposed ways to update current regulations to strengthen the reporting of blood alcohol measurement results.

Last April, he testified before the California State Assembly Health Committee as to the need for crime labs to improve their procedures and urged the state to set up a forensic science advisory board. This was in support of Assembly Bill 2425, which would update, for the first time in 30 years, the regulations that govern forensic alcohol analysis. As a result of these efforts, Santa Clara County has implemented best scientific practices for DUI prosecutions.

Boscia is working with other counties to do the same.

AILA MALIK

W

hen Aila Malik ’04 started Santa Clara Law in 2001, she thought a career in environmental law would be compelling. She had a B.S. in Environmental Studies from U.C. Santa Barbara and minors in music and professional writing.

But her experience with the NCIP the summer after her first year set her on another course. “I had no clue about the injustices inherent in the legal system,” she says. “I had always worked with disadvantaged populations (mentally ill, disabled) and I saw that ‘incarcerated people’ was another population that didn’t have a voice. I felt I could make a lot of impact. When I fell in love with work in social justice, I jumped ship from environmental law to criminal.”

During the rest of law school, Malik continued her work with the NCIP. “I was really exposed to a great community of amazing intellectuals, Linda Starr, Marjorie Allard, Cookie Ridolfi. Many supervised me directly. I experienced my first visit to a prison, parole issues, false confessions, and so much more.”

Her work at the NCIP helped Malik “come into [her] understanding” of issues facing youth at Fresh Lifelines for Youth (FLY), a South Bay nonprofit she had connected with during her first year of law school. FLY is dedicated to “preventing juvenile crime and incarceration through legal education, leadership training, and one-to-one mentoring.”

At Santa Clara Law, Malik took advantage of all of the opportunities to explore different areas of practice in social justice: immigration (focusing on political asylum and refugee cases) and international human rights.

She bolstered her knowledge and skills through clerking with an immigration firm and a summer abroad in Mexico learning about NAFTA and sharpening her Spanish, which she speaks along with Hindi/Urdu. She also took a summer clerkship with

Malik says NCIP “very much influenced” her decision to join FLY full time after graduating with her Social Justice Certificate and a slew of awards and merit scholarships, including the Dean Emery Scholarship for academic achievement.

“We help youth to respect the law and believe in the process. We teach them to use it to make positive change, even when the system is not perfect,” she says. Since 2004, Malik has taught juvenile justice as an adjunct lecturer at Santa Clara Law, where students can work with FLY for credit through her class.

Malik has gained great expertise in juvenile justice and teaching youth about the justice system.

She admits it is C O U RT ES Y AI L A M AL I K

“NCIP has had a profound effect on my career, my academic interests, and my commitment to pursuing justice,” says Boscia. “NCIP taught me that prosecutors must be wise in their exercise of authority and discretion. And I learned that prosecutors, not just defense attorneys, have a duty to ensure that the system is just, fair, and accurate.”

Boscia’s next challenge: drug cartel prosecution. He says, “The same science that is used to determine measurements for blood alcohol is used to determine measurements of controlled substances in major narcotics cases. Getting those measurements right can mean the difference between enhanced sentences or not.”

“I was really exposed to a great community of amazing intellectuals ... I experienced my first visit to a prison, parole issues, false confessions, and so much more.”

—AILa Malik J.D. ’04

a mainstream law firm (intellectual property litigation), which confirmed mainstream law was not her cup of tea.

Malik was soon entrenched in preparing for a career in social justice, which, she says, is consistent with the satisfaction she gets from helping people.

“Raised for many years as the only child of immigrants from Pakistan, I spent a lot of time watching them navigate systems—not only community building from the point of view of an immigrant, but also dealing with their own issues— for instance, my mother’s mental illness. I have always gravitated to those situations where I can be an advocate for vulnerable populations.”

challenging. “How do you teach that the system is flawed, confessions can be coerced, for example, but still teach the value of having a rule of law?”

With plans to leave her 13-year career at FLY in December, Malik is deciding what is next. She is considering the possibility of devoting herself to the formation of a nonprofit to help parolees from San Quentin Prison “become healthy productive members of society”—a population she has been working with formally for nearly three years, and informally since her time at NCIP.

fall 2014 | santa clara law 27

C LA SS A C TI ON Santa Clara Law class of 2014 graduates included (from left) Heather Maslowski, Shama Merchant, and Roya Rahgozar.

CHA R LE S B A R RY

Alumni 1971 Hon. Donald J.

Sullivan BSEE ’68 received the Judge of the Year Award 2013 from the San Francisco Trial Lawyers’ Association.

He presides over a trial department of the criminal division of the San Francisco Superior Court. He previously served in the unified family court doing family and juvenile dependency matters, and also in civil court. He lives in Mill Valley with his wife, Genevieve.

1973 Hon. Eddie

Sturgeon is a superior court judge in San Diego County. He teaches through the Center for Judiciary Education and Research and the California Judges Association. He was dean of the California Judicial College in 2009 and 2010.

28 santa clara law | fall 2014

1976 Hon. Phyllis

Hamilton is to become the chief judge of the U.S. District Court of Northern California at the end of 2014.

Hon. Risë Jones Pichon of the Santa Clara County Superior Court hosted an annual Judge’s Fireside Chat for the Santa Clara County Black Lawyers Association, where African American judges and Santa Clara Law faculty talk with students about school and their careers.

1977 Hon. Keith

Graham B.A. ’74 is a judge in Cimarron, N.M., where he moved in 2010 after retirement as a Navy JAG captain. He spent 25 years at Lawrence Livermore National Laboratory and 35 years as an adjunct professor, teaching maritime law at the California Maritime Academy.

Thomas E. Jensen BSC ’74 is living the retired life at

8,800 feet in a mountaintop log home 40 miles west of Colorado Springs, Colo.

David Scott B.A. ’74 retired in 2002. He splits his time between Saratoga and the Aspen, Colo. area and traveling. He practiced law until 1981. He then worked for a subsidiary of NV Philips until he started a small electronics company in 1983, which he sold prior to retirement.

1978 Jim Hartnett is vice

chair of the California High Speed Rail Authority Board.

He does litigation and dispute resolution as a partner at Hartnett, Smith & Paetkau in Redwood City.

1980 Merril Zebe is public interest coordinator for the Philadelphia, Pennsylvania, Bar Association. She joined the bar association in 2003 after working as an advocate for Community

Legal Services of Wilmington, Delaware, for 13 years.

She also previously worked as development director for several nonprofit social service agencies.

1981 Beth Kerttula is

a visiting fellow with the Center for Ocean Solutions at Stanford University. She is involved in efforts to strengthen decision makers’ understanding of policy implications of changing oceans and climates. She took the fellowship after resigning from the Alaska legislature, where she had served in the House since 1999. As a Democrat from Juneau, she had served as minority leader since 2007.

1982 Thomas Lawless

BSC ’77 is serving a five-year term as a member of the Arizona Racing Commission.

He is a shareholder in the Phoenix law firm of Milligan

Lawless, specializing in estate planning and corporate law. Thomas Poletti is a partner in the Orange County office of Manatt, Phelps & Phillips in the firm’s capital markets practice.

Previously, he was a partner at K&L Gates. He focuses on corporate and securities work for investment banks, private equity funds, and publicly and privately held companies. He has served on the board of directors of Skechers USA and of IMH Commercial Holding, a specialty finance lender organized as a REIT. Karen Reinhold is a shareholder in the San Jose office of Hopkins & Carley. She is an employment and trial lawyer.

Previously she was in-house counsel to Loral Space & Communications.

Industry Foundation of Santa Clara and San Mateo Counties. The organization supports affordable housing solutions and funds emergency housing grants.

He is a partner at Miller, Morton, Caillat & Nevis.

1983 Margueritte

1994 Laurie Look MBA,

Britton is a tax manager for Richmond, Va.-based CPA firm Piascik. Previously, she was a U.S. tax consultant for MG Partners in Paris and Thomas St. John in London.

1986 Ce Cole Dillon co-

founded Student Loan 411, an advisory firm that helps borrowers re-engineer their student loan debt. The firm also helps financial services firms’ clients, mortgage and real estate companies, and universities to manage their default rates. She resides in Chicago, Ill. with her family.

Karen O’Kasey is a fellow of the American College of Trial Lawyers. She practices with Hart Wagner in Portland, Ore., where she defends employers and medical professionals in litigation.

1988 Peter Dessau B.A.

’84 is a member of the board of directors of the Housing

1990 Christine Redfield

is of counsel in the trademark group at Fenwick & West in Mountain View. She provides brand counseling and enforcement advice to technology companies and helps protect trademark rights online.

1992 David Epps,

alternate public defender for Santa Clara County, was honored as a Sixth Amendment Rights Warrior by the Santa Clara County Black Lawyers Association.

B.A. ’90 is a shareholder in the Palo Alto office of Hopkins & Carley. She advises clients on estate planning and estate and trust administration. She is a member of the planned giving councils of both the El Camino Hospital Foundation and Los Altos Community Foundation. Vince Sampson is special counsel of Cooley’s higher education practice in Washington, D.C. Previously, he was president of the Education Finance Council and principal deputy assistant secretary for policy, planning, and innovation in the office of postsecondary education of the U.S. Department of Education. He also worked on Capitol Hill as deputy chief counsel for the Committee on Natural Resources in the U.S. House of Representatives.

Stephen Sutro is managing partner of the San Francisco office of Duane Morris. He

joined the firm in 2000 and focuses his practice on complex business litigation, government and internal corporate investigations, and corporate matters. He is co-chair of the Criminal Justice Section of the Bar Association of San Francisco.

He has been listed for several years as one of Northern California’s Super Lawyers in white-collar criminal defense.

1996 Hon. Nathan Ide

was appointed to the Tulare County Superior Court by Gov. Jerry Brown. Previously, he had worked at his own firm since 2007. He worked as a partner at Gubler & Ide from 2002 to 2006 and as associate at two law firms from 1997 until 2001.

2000 Dan Dow was

elected district attorney for San Luis Obispo County.

Previously, he was a deputy district attorney in that office.

2001 Jay Farwell B.A.

’94 is head coach of the SCU men’s crew team, in addition to practicing law in Los Gatos. Michon Spinelli is a partner at Ropers Majeski Kohn & Bentley in its commercial litigation practice group in Redwood City. She focuses on litigation in business, employment, complex personal injury, wrongful death, products liability, and landlord-tenant.

She is past president of the Italian American Bar Association of Northern California and on the board of directors of the Association of Defense Counsel of Northern California and Nevada.

2003 Steven Braccini

B.S. ’99 and Dori Yob are shareholders at Hopkins & Carley, Braccini in the

firm’s Palo Alto office and Yob in San Jose. Braccini practices in trust and estate litigation and is vice chair of the probate section of the San Mateo County Bar Association. Yob focuses on complex real estate, business, and commercial litigation. She is a member of the San Jose Planning Commission. Gary Haase is a registered foreign attorney in Japan at the Ethos Law Office in Osaka. He focuses on U.S. immigration law and business transactions. Before attending law school, he lived and worked for three years in Japan as a member of the Japan Exchange and Teaching Program. Emily Wang Phan was the Metro readers’ pick for best criminal lawyer in Silicon Valley.

2005 Mariana Antcheva

is in-house counsel for nextgeneration camera maker Lytro. She previously worked at Fenwick & West. Elva Harding established Harding Legal in Walnut Creek, where she advises investors and small and mid-sized companies on real estate and corporate matters.

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Keep your fellow law alumni posted on what's happening.

Email your news to lawalumni@scu.edu or send to Law Alumni Office Santa Clara University 500 El Camino Real Santa Clara, CA 95053

fall 2014 | santa clara law 29

CL A S S A CT IO N

2006 Vishal Jangla

and his wife, Christina, welcomed their first child, Dashiel William, on March 28. Jacquetta Lannan left law to start Chez Franc, a gourmet hot dog eatery and food truck in Palo Alto that will open in late summer. She credits the California Program for Entrepreneurship at SCU’s Leavey School of Business for helping her make the career change.

2009 Matthew Hanley,

a native of Traverse City, Mich., has returned to his hometown to join the law firm of Dingeman Dancer & Christopher. Leslie (Maglione) Jensen B.A. ’06 and her husband James announce the birth of their first child, Samantha May, on Jan. 17. Zachary Pegan is a manager at American Express in New York, where he has worked since 2010.

He is a manager on the monitoring rule development

team in the enterprise anti–money laundering and financial intelligence unit. One of his primary responsibilities is to identify typologies of criminal use of American Express products and services.

2010 Natalie Morsette is

an associate in the corporate section of Hanson Bridgett in San Francisco, where she does transactional work.

Previously she worked for WilmerHale.

2011 Gina Cortese is

an associate for Sideman & Bancroft in San Francisco.

She focuses on brand protection, anti-counterfeiting and anti-fraud efforts, and corporate transactional matters. She will work in the business crimes group and with the firm’s litigation and family law groups.

2012 Ryan Markley

works for Central California Alliance for Health in Scotts Valley.

2013 Catie Barr B.A.

’10 works for the law firm of Barr & Mudford in Redding.

Jeremy Krenek works for Incline Law Group in Incline Village, Nev. His practice focuses on general business, real estate, family, and sports law and litigation. Carrie MacIntosh and Corey Van Houten are associates at Miller, Morton, Caillat & Nevis in San Jose. MacIntosh focuses on litigation, and Van Houten focuses on representing developers, builders, property owners, and general contractors in construction defect and real estate matters. He previously worked as an attorney at Quantum Corporation. Jaime Saavedra is an associate on the patent team in the San Francisco office of Kilpatrick Townsend & Stockton.

1951 Robert “Bob”

Bounds, Jan. 17, 2014. A native of Yakima, Wash., he practiced law there for many years and was Yakima’s prosecuting attorney. He is survived by his wife, Rose, seven children, 17 grandchildren, and 28 greatgrandchildren.

1956 Arnold Berwick,

Dec. 27, 2013. Born in Belle Plaine, Iowa, he was a graduate of Lowell High School in San Francisco and the University of California, Berkeley. He began his career as a carpenter before going to law school. He practiced law in San Jose for 25 years and raised three children in Saratoga with his wife, Dorothy. He was a member of the Norwegian Club and Sons of Norway. Survivors include a daughter, four granddaughters, and 11 great-grandchildren.

1959 Hon. John “Jack”

ALUMNI PROFILE

Norris Named a Top 50 Woman Leader in Tech Law

CHA R LE S BA R RY

The legal publication The Recorder has named Laura Norris J.D. ’97, assistant clinical professor and director of the Entrepreneurs’ Law Clinic at Santa Clara Law, as one of the Top 50 Women Leaders in Tech Law for 2014. “These are the women who lead litigation and deals; who lead in-house teams and firm practice groups; who are thought leaders; and who lead the way for other women seeking roles in the region’s most dynamic sector,” noted The Recorder.

Norris, one of only two academics named, was nominated Laura Norris J.D. ’97 for her work founding the Entrepreneurs’ Law Clinic and for her innovative approach in educating students to be start-up lawyers while representing entrepreneurs and new ventures as clients.

Four other Santa Clara Law alumnae were named to the list: Valerie Albanza-Cary J.D. ’00; Marcia Chang J.D. ’04; Julie Mar-Spinola J.D. ’87, who is a mentor in the Entrepreneurs’ Law Clinic; and Heidi Keefe J.D. ’95. Another honoree, Noreen Krall, serves on the advisory board of the Law School’s High Tech Law Institute.

30 santa clara law | fall 2014

In Memoriam

Quirk, Feb. 19, 2014. He served in the United States Army during the Korean War. He worked for the Tulare County District Attorneys and Public Defenders Offices. He went into private practice in 1961 and served as city attorney for Porterville for 17 years. He was appointed to the bench by Gov. George Deukmejian in 1984.

Survivors include a brother, his children, grandchildren, and one great-grandchild.

1960 James R. Tormey, Jr., Oct. 5, 2013. Raised in San Mateo, he practiced law in his hometown until he retired in 1997. He was a fierce advocate for public

helped establish. Survivors include his wife, Terry, three siblings, four children, and 10 grandchildren.

1964 Joseph “Joe”

1973 William F. Caro

Young, April 11, 2014.

He spent his early years in Montana, moving to Alaska at age 14, where he became an accomplished ski racer. A ski instructor for many years, he skied in the National Alpine Championships in the 1950s. He decided to go to law school at age 31.

Practicing law in Anchorage with Atkinson, Conway, Young, Bell & Gagnon and later with Young and Sanders, Young represented injured plaintiffs. He was named one of the 80 top trial attorneys in the country by Town and Country magazine and was included in “The Best Lawyers in America.”

In retirement, he spent most of each year in Sun Valley, Idaho. Survivors include his wife, Pudj, a brother, two children, three grandchildren, and one great-grandchild.

1967 William Locke-

Paddon, April 14, 2014. He received an undergraduate degree from Stanford University. After practicing law for 29 years with the Watsonville law firm of Wyckoff, Parker, Boyle & Pope, he practiced in Aptos with Ralph Sanson until 2003 before becoming a solo practitioner until 2013.

A certified specialist in estate planning, trust, and probate law, he was president of the Santa Cruz County Bar Association in 1981.

Locke-Paddon was involved in many philanthropic organizations, including the Community Foundation of Santa Cruz County, which he

B.A. ’54, Feb. 26, 2014.

He obtained an MBA from Stanford and worked as an advertising media director in San Francisco, Los Angeles, and Santa Clara. He later taught advertising at San Jose State University. He is survived by two brothers, Robert S.J. ’58, M.Div ’70 and Paul B.A. ’62.

1974 Victor Reyes, Feb.

28, 2014. He was a graduate of the University of California, Davis, and served in the U.S. Marines in Vietnam.

He was a lifelong resident of Madera and worked in the legal field for 25 years.

Survivors include a brother.

Robert M. Tobin BSC ’70, June 7, 2014. He first came to Santa Clara University as a basketball player in the late 1960s. He served in the U.S. Army Reserves. A trial lawyer for Hoge Fenton and Rankin O’Neal, he later went into solo practice. Survivors include his mother and three siblings.

1976 Timothy Cheney,

Feb. 9, 2014. He graduated from Stanford University as an undergraduate. After law school he practiced law for several years in Palo Alto before moving to Oregon to teach. As a tenured professor at Linfield College from 1984 to 1999 he taught business law and also did so later at Idaho State University. He is survived by his wife, Cynthia, a sister, and his mother.

IN MEMORIAM

John Vasconcellos (1932–2014)

FLICKR | JOI ITO

education, an avid skier, and he appreciated the challenges and rewards of a rural lifestyle.

John Vasconcellos B.A. ’54, J.D. ’59, a legendary state legislator who represented Santa Clara County for 38 years, died May 24 in Santa Clara.

Vasconcellos achieved national fame in the 1980s when his pet project, a state task force to promote self-esteem and personal and social responsibility, was lampooned in the comic strip Doonesbury.

Vasconcellos used the spotlight to promote the idea of self-esteem even further. After serving in the state Assembly for thirty years, where he chaired the Ways and Means and then Ethics Committees, Vasconcellos was elected to the state Senate in 1996. He chaired the Senate Public Safety Committee, committees on K-12 and Higher Education, and the Subcommittee on Aging and Long-Term Care.

1978 Christopher

Heard, June 17, 2014. He studied at the University of San Francisco as an undergraduate and later in life received a Ph.D. in psychology. After graduation from Santa Clara Law, he worked at the Santa Clara County District Attorney’s Office. He served in Sacramento during the Deukmejian administration.

He also worked as a forensic psychologist. Survivors include two daughters, three grandchildren, and three siblings.

1991 Stephen Marlowe,

Dec. 17, 2013. He had resided in Sedona, Ariz., since 2005. Survivors include his wife, Patty.

2000 Kevin Fitzgerald,

May 17, 2014. He was an attorney for the Clark County School District for five years and previously with Bingham McCutchen in Palo Alto.

Survivors include his wife, Jennifer, two children, and six siblings.

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CL OS I NG A R G UM E N TS

United States v. Windsor: One Year Later

By PAT CAIN, Professor, Santa Clara Law

O

n June 26, 2013, the United States Supreme Court handed down its much-awaited opinion in United States v. Windsor,1 holding that the federal Defense of Marriage Act (DOMA) was unconstitutional. DOMA, enacted by Congress in 1996, prohibited the federal government from recognizing valid marriages entered into by persons of the same sex. In 1996, no jurisdiction anywhere in the world recognized such marriages. The first valid marriages for same-sex couples in this country were celebrated on May 17, 2004, in Massachusetts, three years after the Netherlands became the first country to endorse marriage equality.

Also on June 26, 2013, the Court avoided answering the larger issue that had been posed in Hollingsworth v.

Perry:2 Do same-sex couples have the 32 santa clara law | fall 2014

same constitutional right to marry that opposite-sex couples enjoy? Instead the Court ruled that the defenders of Proposition 8 did not have standing to pursue the appeals, either from the District Court’s decision or from the Ninth Circuit’s decision. This ruling reinstated Judge Walker’s opinion at the district court level, which had struck down Proposition 8 as violating the 14th Amendment.3 As a result California moved back into the marriage equality column of states, bringing the total number of jurisdictions in which samesex couples could marry to 14 (13 states plus the District of Columbia).

Marital status is determinative of many federal rights and benefits.

Spouses file tax returns using different rules from single taxpayers. In married couples where there is only one earner, the nonearning spouse may be entitled

to Social Security benefits based on the earnings record of the other spouse.

Immigration rules are more beneficial for spouses of American citizens. And, federal employees, including military personnel, receive numerous benefits for their spouses.

The fact that only 13 states (plus D.C.) recognized same-sex spouses as legally married presented a challenge for the numerous federal agencies that now had to determine who was married for purposes of applying agency rules. Within months of the Windsor decision, most agencies had announced the following rule: any marriage that is valid in the state or jurisdiction of celebration will be recognized as valid at the federal level. The Internal Revenue Service issued a lengthy ruling on August 29, 2013, explaining why it was adopting that rule. The IRS, along with

other federal agencies, also explained that it would not treat registered domestic partnerships or civil unions as marriages. Couples who want to be taxed as married are free to choose to marry, and, even if the couple lives in a nonrecognition state, the IRS will treat the couple as married.

The Social Security Agency, and to some extent the Department of Veterans’ Affairs, must apply a different rule, one that looks to the state of domicile to determine whether a couple is validly married. That is because the definition of “spouse” is contained in statutory provisions that make domicile determinative. (However, an alternative definition of “spouse” in the case of Social Security benefits is broad enough to include registered domestic partners.)

Is place of celebration the best rule? Many have asked that question.

For some it seems strange to be married for federal purposes and not for state purposes. But of course many married same-sex couples experienced just the opposite twist for years: married at the state level, but not at the federal level.

In support of the place of celebration rule, large employers argued that it would put an impossible burden on them to determine the marital status of their employees by applying a place of domicile rule. Furthermore, an employee’s status could change under the domicile rule if the employee moved to a new state. Benefits provided to spouses by employers are tax-free. Should that

tax status change each time an employee moves?

A domicile rule would also place an undue burden on the IRS. Taxpayers not only move from recognition states to nonrecognition states and back, but also nonrecognition states may become recognition states. One year ago, at the time of Windsor, only 14 jurisdictions were in the marriage equality column.

Today that number has grown to 20. Furthermore, in every state that continues to exclude same-sex couples from marriage, couples are challenging that exclusion in court. In 14 of these states, a trial judge has ruled that the ban is unconstitutional. In two of these states, Utah and Oklahoma, a federal appeals court has upheld the trial court’s ruling. If this pace continues, the issue that the Supreme Court avoided in Perry is likely to be back on the Court’s docket within the year. If the Court follows the lead of all the other post-Windsor federal courts that have considered this issue, marriage equality will become a reality for all. And then it will not matter whether a federal agency applies a place of celebration rule or a domicile rule.

NOT E S 1 113 S. Ct. 2675.

2 133 S. Ct. 2652.

3 Perry v. Schwarzenegger, 704 F. Supp. 2d 921(N.D. Cal. 2010).

K AT E B U R G ESS

One year ago, at the time of Windsor, only 14 jurisdictions were in the marriage equality column. Today that number has grown to 20.

Furthermore, in every state that continues to exclude same-sex couples from marriage, couples are challenging that exclusion in court.

Professor Patricia Cain is a national expert in federal tax law and sexuality and the law. She has published numerous law review articles, essays, and book reviews. Her area of specialization is taxation and estate planning for same-sex couples, and she frequently lectures on this topic at state and national continuing legal education programs. She is the co-author, with Professor Arthur S. Leonard, of one of the leading casebooks for Sexuality and the Law courses, Sexuality Law, 2nd edition (2009). She is also the author of Rainbow Rights: The Role of Lawyers and Courts in the Lesbian and Gay Civil Rights Movement (2000).

fall 2014 | santa clara law 33

Nonprofit Organization U.S. Postage PAID San Jose, CA Permit No. 1

Santa Clara University Santa Clara Law 500 El Camino Real Santa Clara, CA 95053-0435 The Jesuit University in Silicon Valley

CHANGE SERVICE REQUESTED

law.scu.edu/sclaw

20 Years of Education, Service, and Success In 1994, Santa Clara Law students decided to volunteer their legal skills to help their community, and the East San Jose Law Center was born. Twenty years later, the renamed Katharine and George Alexander Center serves more than 1,000 clients per year in the areas of consumer law, immigration law, employment law, and tax matters. Through its unique student-attorney model, the Law Center provides about $1.5 million in legal aid every year—without charging clients a single penny.

Join the anniversary celebration on Saturday, October 25, 2014. Speakers will include Luis Rodriguez B.S. ’89, J.D. ’92, president of the State Bar of California; and Jim Hammer, Law Center co-founder and Fox News Channel legal analyst. For details, call (408) 288-7030 or visit law.scu.edu/kgaclc.

A photo from July 1994 when the Law Center was born. From left are law students Julie Rivera-Coo, Ruben Pizarro, and Jose Sanchez. Seated is co-founder and then faculty member Jim Hammer.

CHA R LE S B A R RY