Clinical Legal Education Newsletter · taught by Tim Ho (WSRSL ‘87), the ... Clinical Legal...
Transcript of Clinical Legal Education Newsletter · taught by Tim Ho (WSRSL ‘87), the ... Clinical Legal...
Clinical Legal Education Newsletter
William S. Richardson School of Law, University of Hawai̒i at Mānoa
Inside this issue:
Prosecution Clinic 2
Defense Clinic 2
Live –Client Clinic
Updates
3
Volume 1, Issue 2
Spring 2012
Alvin Jardine finally freed after almost 20 years. He saw his adult daughter for the first time last year.
the possibility of an early parole by
refusing to enter a sex-abuse treat-
ment program that would have
required him to admit guilt.
The Jardine case is the Hawaii
Innocence Project’s first case to have
had its conviction set aside. Mr.
Jardine’s application was also one of
the first reviewed and accepted by
the Hawaii Innocence Project,
shortly after the project was
launched in 2005.
Peter Neufeld, who along with
Barry Scheck started the national
Innocence Project in 1992, originally
contacted the University of Hawaii’s
(Continued on page 4)
T hanks to the Hawaii Inno-
cence Project, Alvin F.
Jardine III was set free last
year after serving almost twenty
years in prison for a crime he says
he didn’t commit. The Hawaii
Innocence Project presented new
DNA evidence of tests done on a
tablecloth that had been covering
a ‚papasan‛ chair that the victim
and her attacker were on during
the rape. Those tests excluded
Mr. Jardine as a contributor of
male DNA detected on three of
four stains of blood or bodily
fluid, with a comparison unable to
be made on the fourth stain.
Finding that these DNA test
results constituted newly discov-
ered evidence that could not have
been produced before or during
the trial, and that the DNA evi-
dence was exculpatory or favor-
able to the defendant and could
change the result of the trial, Maui
Circuit Judge Joel August set
aside Jardine’s 1992 convictions
and ordered a new trial. Charges
were eventually dropped against
Mr. Jardine last July.
According to the Honolulu Star-
Advertiser, Jardine was convicted
on four counts of first-degree
sexual assault, three counts of
attempted first-degree sexual
assault, kidnapping, and first
degree burglary and sentenced to
35 years after he was identified by
the alleged victim as the person
who broke into her home, held
her at knifepoint, and repeatedly
raped her. This conviction came
after two earlier trials resulted in
hung juries. Throughout it all,
Mr. Jardine maintained his inno-
cence. He even denied himself
PERSISTENCE PAYS
W e proudly present this
second issue of the
University of Hawai`i
Clinical Legal Education Newslet-
ter. Once again, 3L Justin Lee
deserves all the praise for making
this issue possible.
To complement our inaugural
issue (August 2011), which fo-
cused on our civil clinics, this
issue spotlights our criminal clin-
ics. Our lead story is on the Ha-
wai`i Innocence Project (HIP),
which with the help of its clinic
students, scored an impressive
victory leading to the release of
Alvin Jardine. We follow with a
description of our Prosecution
and Defense Clinics, established in
1984 and 1979 respectively by our
founding director, John Barkai.
John still teaches the Prosecution
Clinic. The Defense Clinic is now
taught by Tim Ho (WSRSL ‘87),
the first deputy of our Public De-
fenders Office, along with Ronnie
Kawakami (’85) and Bill Bento
(‘87). I hope you enjoy this issue.
Aloha,
Calvin Pang
Editor’s Notes
HAWAII INNOCENCE PROJECT SUCCESS
Professor Virginia Hench Director, Hawaii Innocence Project
‚*The legal system+ strives to get to that
point where these kinds of errors are pre-
vented, but it will never happen. These
things can happen even when you’re acting
in good faith. We don’t assume a person is
innocent or guilty, but we look at the avail-
able information with fresh eyes. If they’re
telling the truth, what could prove it?‛ — Virginia Hench, Hawaii Innocence Project director
Getting into Court — Prosecution Clinic Spotlight
Page 2
T he prosecution clinic is
designed to meet the
needs of students who
have an interest in either criminal
or civil litigation, who want to
develop their oral advocacy skills,
and who want to improve their
public speaking. The goal is not
to make you a prosecutor. The
Prosecution Clinic is an academic
course with a very strong practi-
cal component. This clinic allows
students to have a foot in both the
worlds of law practice and law
school, from which they can ex-
amine practical, ethical, and pro-
fessional issues relating to litiga-
tion while they develop their
practical lawyering skills.
Litigation skills are taught
through the prosecution of real
traffic and misdemeanor criminal
cases in court and various in-class
simulations including the simula-
tion of a major mock civil trial
which includes expert witnesses.
The classroom component meets
twice a week throughout the se-
mester (except for the last three
weeks).
From the student's perspective,
the heart of the Prosecution Clinic
is the courtroom experience. Stu-
dents go to Honolulu District
Court every week in this clinic
and the course provides more
courtroom time than any other
clinic in the school. During the
first three weeks of the semester,
students only observe in court,
but by the fourth week, after
classroom discussions and simu-
lations, they are in court to try
their own real cases under the
supervision of members of the
Honolulu Prosecuting Attorney's
Office.
Although the majority of civil
and criminal cases never go to
trial, by the end of the semester
most students have had 3 to 4
actual trials and a sometimes
some students have had up to 10
trials. (Of course there are always
one or two students who never
have a case go to trial, and that is
part of the reason the clinic does
so much simulation).
Students go to court once a
week in the morning or afternoon
(starting at 8:30 AM or 1:30 PM)
every week. After the first thee
weeks of observations, students
go to court on the same schedule
every week to try cases. Depend-
ing on the court's calendar for the
day, they will be there from 1 to 3
hours. Therefore to take this clinic
students must have one half day
per week with no classes, work,
externships, or other commit-
ments.
In preparation for the actual
courtroom cases, early in the se-
mester the Prosecution Clinic and
the Defense Clinic try simulated
cases against each other one night
in the District Court. Each Prose-
cution Clinic student tries a case
against a Defense Clinic student.
A deputy prosecuting attorney
and a deputy public defender are
present in each courtroom to
serve as judges and provide feed-
back after the trial.
The evidence class is a co-
requisite for this clinic. In the fall
semester, students can take this
clinic in the same semester that
they are taking the evidence
course. Students who have taken
the two courses together seem to
unanimously agree that taking the
courses concurrently has im-
proved their learning in both
courses. However, it is not neces-
sary to have taken either trial
practice or criminal procedure
before taking the prosecution
clinic. This clinic covers the fun-
damentals of trial practice
(although not jury work) and
criminal procedure issues are
almost never critical in the types
of cases that are handled in this
clinic.
A unique aspect of this clinic is
that students may select this clinic
for either three or four credits. All
the students work at the same
pace and schedule during the first
(Continued on page 3)
Clinical Legal Education Newsletter — Spring 2012
Professor John Barkai
Prosecution Clinic
Prosecution Clinic
Law 590B
Credits: 3 or 4
Co-requisite: Evidence
Limited enrollment: 12
There are 2 classroom ses-
sions each week. Students
also appear in court once a
week to try cases.
Students enrolled under
the 3-credit option end the
class about 3 weeks before
the end of the semester
and do not participate in
the large mock civil trial.
Timothy E. Ho ’87
Defense Clinic
Defense Clinic
Law 590C
Credits: 3
Prerequisite: Evidence
Limited enrollment: 12
A substantial portion of
the work for this course is
done outside the class-
room. Initial interview
and assignment of cases
will occur at the Office of
the Public Defender.
Students will handle two
to three cases over the
course of the semester.
Court appearances and
interviews should be
scheduled to avoid class
conflicts.
Classes will end before the
end of the semester, but
court appearances will
continue until the end of
the semester, or until the
completion of the case.
Each case is actively super-
vised by a supervising
attorney. All major deci-
sions in the case must be
discussed with and ap-
proved by a supervising
Defense Clinic Spotlight
attorney.
Attendance is mandatory.
Any combination of
missed classes, which re-
sult in the student’s inabil-
ity to give competent rep-
resentation to their client,
will result in a “no credit”
grade.
Students are not allowed
to represent defendants in
court if they are currently
working/externing/
interning with the Dept. of
the Prosecuting Attorney.
Prosecution Clinic (cont’d)
Page 3 Clinical Legal Education Newsletter — Spring 2012
three quarters of the semester, but
3-credit students end the class
about 3 weeks before the end of
the semester because they make
fewer courtroom appearances,
they do not participate in the
large mock civil trial which is near
the end of the semester, and they
do not attend 2 to 3 weeks of
classes focused on the mock civil
trial. This clinic requires no more
time than any other 3 or 4-credit
course.
The Prosecution Clinic is a
great course for students who
have the slightest inkling that
they might be interested in any
type of litigation. It gives you the
opportunity to try the litigator's
role. Even if your primary interest
is clearly civil litigation, you will
have the opportunity to do more
witness examination in this crimi-
nal clinic than in any civil clinic. If
you think you have an interest in
being a prosecutor, this gives you
the opportunity to walk in a
prosecutor's shoes and see if it
might really be for you. If you
think you want to be a public
defender, this is the perfect op-
portunity to begin to understand
how the prosecutor will think
about your case. Every year, 2 to 4
students take both the Prosecu-
tion and the Defense Clinics (but
they must be taken in separate
semesters or else there would be a
conflict of interest). And it might
surprise you to learn that every
year one or two students who
never thought they had an inter-
est in doing any criminal litigation
before enrolling in this clinic,
ultimately decide that they would
like to try criminal litigation after
they graduate.
But suppose you are abso-
lutely sure that you never want to
do any litigation, you dreaded
doing moot court arguments, and
you never volunteer in class. This
is the perfect opportunity to en-
hance your personal and profes-
sional skills where your job is not
on the line. You must take this
class! This is a class where you
(Continued from page 2) can really grow. It might even
change your career path.
I myself came to law school
with a Bachelor’s and Master's
degree in business administration
and was sure I was going to be a
corporate lawyer. After some
summer work and a part-time job
with a law firm that did some
criminal work, my first job out of
law school 40 years ago (yikes!)
was as a public defender in De-
troit where I successfully de-
fended clients in jury trials on
charges of armed robbery, rape,
and felony-murder. However, like
most academics, at some point I
decided I would rather "teach it"
then "do it." Teaching a clinic
allows me to have a little bit of
both. I taught criminal defense
clinics for my first 15 years of law
school teaching and I taught my
first prosecution clinic when we
had to cover a hole in the sched-
ule because an adjunct professor
had to withdraw from teaching
what was going to be the first
Prosecution Clinic at the last mo-
ment. At first I was reluctant, but
soon I was delighted. Although
prosecution clinic students do not
get the opportunity to work with
their own individual "clients," I
immediately recognized a prose-
cution clinic could provide stu-
dents with much more courtroom
time than a defense clinic could
and ever since that time I have
been offering a prosecution clinic.
You can view a syllabus for
this course and the current hand-
out materials by visiting http://
w w w2 . h a w a i i . e d u / ~ b a r k a i /
L590b.html, or simply googling
‚John Barkai,‛ going to my home
page, and clicking on the link for
‚Prosecution Clinic."
Although almost all of the
traffic cases that we work on (Stop
sign, Red light, Speeding, etc.) are
not very factually complex and do
not take a lot of preparation (the
officer said, ‚You did not stop.‛
but the defendant said, "I did
stop‛), the advocacy issues can be
very challenging especially since
every judge is different, every
police officer is different, and
every defendant is different. De-
termining factual accuracy and
witness credibility is fundamental
to all types of advocacy. The foun-
dational facts in many of these
cases are very similar to the facts
that a personal injury lawyer will
encounter in an auto accident
cases. Even experienced police
officers who have taken the Prose-
cution Clinic as law students find
this course to be challenging,
enhancing, and fun. The course is
‚credit/no-credit‛ and there is no
final exam. What more could you
ask for in a course?
Live-Client Clinic Updates Entrepreneurship and
Small Business Nine students, in four teams of
2-3, conducted four clinics: two
at the Manoa Innovation Cen-
ter, and two at the Small Busi-
ness Development Center.
Eight clients were assisted,
including, among others, mem-
bers of the hospitality, software
development, and technology
sectors.
Advanced Elder Law The clinic was very lucky to
have 3L Kimberly Torigoe as-
sist with a number of consumer
education sessions, as well as
help prepare for the Spring
2012 Elder Law Clinic, which
will have a focus on Veterans
issues.
The education sessions offered
during the Fall 2011 semester
included the annual ‚Nite of
the Living Will,‛ plus sessions
on health care financing and
veterans issues.
Environmental Law Nine environmental law clini-
cians conducted three commu-
nity workshops on the islands
of O`ahu, Moloka`i, and Maui.
The workshops assisted pro se
defendants in Bartell v. Heirs or
Assigns of Manuela, a quiet title
and partition action that in-
volves ancestral lands on the
east end of Moloka`i. The case
affects hundreds of Native
Hawaiians and the clinic pro-
vided workshops and materials
for defendants who may par-
ticipate in the case without
legal assistance.
Funds from the Office of Ha-
waiian Affairs made this project
possible. These funds will con-
tinue to aid the project by ena-
bling the Native Hawaiian
Rights Clinic to continue the
work of the clinic in the Spring
2012 semester.
The clinic is grateful for the
assistance of a number of ex-
perts who volunteered their
time, including Bill Meheula,
Sheryl Nicholson, Randy Roth,
Calvin Pang, Janet Hunt, Lea
Hong, Luci Meyer, and Xerox.
Family Law The clinic welcomed a new
Lecturer, Tara Arimoto, from
Legal Aid Society of Hawaii, to
join Jennifer Rose in teaching
the clinic. Due to the clinic’s
popularity, ten students were
accepted, rather than the usual
eight students. In addition, the
clinic was offered again in the
Spring 2012 semester.
The students successfully ac-
complished the goals of the
clients while being highly con-
scious and sensitive to the sig-
nificance of domestic violence-
related concerns. One student
was able to help a client in-
crease child support. Three
clients, represented by either
one or two students, were
awarded temporary restraining
orders. Finally, two students
represented the respondent in a
case in which the client’s
spouse was trying to abuse the
restraining order calendar to
obtain custody of the children.
The students completed a full
trial in Family Court and won
the case for their client so she
could have her children re-
turned to her.
Clinical Legal Education Newsletter — Spring 2012 Page 4
2515 Dole Street, Honolulu, HI
96822-2350
(808) 956-7966
law.hawaii.edu/clinical-program
Child Welfare Clinic
Criminal Defense Clinic
Elder Law Clinic Entrepreneurship & Small Business
Clinic
Environmental Law Clinic
Family Law Clinic
Hawai‘i Innocence Project
Native Hawaiian Rights Clinic
Prosecution Clinic
Although completion of our J.D. program requires only two credits from a designated
clinical course, our law students average nine clinical credit hours upon graduation.
At present, externships do not satisfy the clinical requirement for graduation.
Environmental Litigation Seminar
Estate Planning Workshop
Lawyering Skills Workshop
Mediation Workshop
Negotiation + ADR
Pretrial Litigation
Trial Practice
The WSRSL Clinical Program
Medical-
Legal
Partnership
Externships
Simulation
Courses;
Skills-based
but no real
clients
Live
Client
Clinics
avenue,‛ said Hawaii Innocence
Project Attorney William Harri-
son to the Star-Advertiser.
‚There’s usually very little evi-
dence and people have already
gone over it again and again. It’s
very tedious work trying to find
that one proverbial straw that will
help get a conviction overturned.‛
After finally getting its hearing,
the Hawaii Innocence Project
convinced the court in 2009 to
order new DNA testing on the
remaining evidence.
Mr. Jardine’s steadfast mainte-
nance of his innocence was essen-
tial in convincing the Hawaii
Innocence Project to take the case.
The Hawaii Innocence Project
only considers cases in which the
person: (1) is currently incarcer-
ated; (2) is serving a lengthy sen-
tence; (3) was convicted in Hawaii
(although they may be incarcer-
ated elsewhere); (4) has a credible
claim of actual, factual innocence
of the crime(s) for which the per-
son in incarcerated; and (5) evi-
dence potentially exists which
could support the claim of factual
innocence. For the purposes of
applying to the Hawaii Innocence
Project, ‚factual innocence‛
in an interview with the Maui
News. ‚I came away convinced,
although at the time I had no
evidence. I found him completely
consistent. He offered to take a
polygraph. He said, ‘Test the
DNA.’ I said, ‘We will if we can
find it.’ I told him what I tell
everybody. I can’t promise we
can get you out. But we’ll investi-
gate.‛
The prosecution, however,
wouldn’t agree to the DNA test-
ing. As a result, project volun-
teers worked to get a court hear-
ing. Searching for trial tran-
scripts, they discovered that those
from Mr. Jardine’s first and sec-
ond trials had been send to ar-
chives and that only one person
was authorized to search them.
The transcripts of his third trial
could not be located – a court
reporter had to re-create them
after she returned from maternity
leave.
‚You can see why it takes
years,‛ said Prof. Hench in the
same interview. ‚So many people
contributed to this case. It was a
team effort.‛
‚By the time people come to us,
they’ve exhausted every other
means that the person did not
commit or participate in the
crime. It does not include purely
legal defenses such as self-defense
or insanity, and does not include
sentencing, overcharging, or simi-
lar legal issues.
Currently, Professor Virginia
Hench serves as the director of the
Hawaii Innocence Project, with
attorneys William Harrison,
Brook Hart, and Susan Arnett as
its staff. In addition, 12 to 15 sec-
ond and third year law students
assist with hands-on work in a
clinical course offered each semes-
ter. Students are taken through
all steps of a case, from interview-
ing inmates in prison, speaking to
prosecutors, tracking down wit-
nesses, and gathering evidence.
‚It’s an excellent vehicle for stu-
dents to learn how to avoid huge
mistakes as lawyers,‛ said Brook
Hart in a 2007 interview with the
Honolulu Star-Bulletin. ‚We are
looking for actual innocence, but
we are also looking for mistakes
that may have compromised the
fairness of a person’s trial to the
extent that they ought to have a
new trial.‛
Richardson School of Law about
starting a local Innocence Project
in the late 1990s, but the school
lacked the resources at the time.
In 2004, the school reached an
agreement to collaborate with
California Western School of Law
faculty and students and the Cali-
fornia Innocence Project. Around
the same time, Ilima Morrison , an
alumnus of Richardson Law
School, was contacted by Alvin
Jardine’s family for pro bono
assistance in filing a motion to
preserve evidence. That motion
ended up preserving the one
piece of evidence that was finally
able to be DNA-tested – the table-
cloth. Hearing that an Innocence
Project was being started at the
law school, Ms. Morrison helped
Mr. Jardine’s case be in the first
package of applications received
by the project.
After receiving Jardine’s appli-
cation, Professor Virginia Hench,
director of the Hawaii Innocence
Project, flew to see Mr. Jardine in
Mississippi, where he was incar-
cerated. ‚You have to look some-
body in the eye and talk to them
and hear their side of it,‛ she said
(Continued from page 1)