Deadline:

rtbn BAR REVIEW

You may qualify for as much as $200 off your "locked-in" tuition price for

BAR/BRI's 1995 PA or PA/NJ course!

February 1, 1995

How to Apply: Submit a letter describing your financial condition as well as any reasons why a scholarship is deserved (amount of outstanding loans, commitment to law, public service, etc.). Letters should be no more than one single-spaced typed page.

Send to: BARIBRI of Pennsylvania Scholarship Committee 2100 Arch Street, Fifth Floor Philadelphia, PA 19103

Students will be notified of their scholarship award by the end of February, 1995.

Deserving candidates should not have a commitment for full-time employment with a salary of more than $30,000 following graduation.

Scholarship candidates must also agree to renounce the scholarship should he! she receive a commitment for full-time employment by May 15, 1995, at greater than $30,000.

JURIS • Volume 28 • Winter 1995

Editor-in-Chief Faith D. Slampak

Executive Editor JosephS. Koscinski

MSJtaging Editor Get·ald W. Yanity

Executive Pt·oduction Editor Paul H. Jeges

As~istant Production Editor Clifford F. Chin

Law Editor Alison Fenlon

Articles Editon Tsegaye Beru

Glenn E. Camus

Senior Editor Kristin L. Pieseski

AJwnui Editor Michael Riffkin

Campus Editor Jennifer M. Swistak

Graphics Editor Joseph H. Keebler Jr.

Photo@ir&pby Editors Gail L. Brannon Michele A. Forte

Staff Editors Susan M. Fix

Colleen Finnegan Dawn K. GuU Tiffany Leroy

Raphael A. Pearl David M. Seitz

Steve M. Sodine

Contt·ibuting Writer~ Mary R. Castelli

Erin Lat·abee Bmce Ledewitz

Mark D. Stevens Amy Zamhot·sky

Business Staff Aaron J. D .. Luca

Todd Kristofik Helen Thompson Andrea L. Treese Tammie Williams

Production Staff Carrie J. Dittmar ~o.-,;ia M. Nutter

Photographers Patricia Fisher

MRI"y P. M111·ray

Faculty Advillel'll Kenneth Gormley Raymond Sekula

CoverS tory

The pervasive pretrial publicity in the 0.]. Simpson case has threatened the football

star's right to a fair trial. Mark D. Stevens

examines the media impact on the Simpson case.

Page4

Articles

Getting a good job can be tough. Paul H. Jeges offers the law student advice on getting that

all-important summer job and translating it into an offer for permanent employment.

Page 16

The Law

A woman says "no" to sex. Yet the man who did not heed that demand is not guilty of rape.

Kristin L. Pieseski details the Pennsylvania

Supreme Court's controversial definition.

Page 22

Also Inside ...

Editorials ............................................................................ 2 Articles . .. .. . . ... .. ........ .................... ...... .. .. . ....... .................. 8 TheLaw ............................................ . ... . .. . ........... . ......... 20 Campus News .. .. .......... ........ .......... ...... ................ .. .......... 24 Alumni News ... ........ . ....... .. .... .... ........... .......... . ............... 28 Humor . . ...... . ................................ . ..... . ... .... ... .. .. .. ..... ....... 33

Editorials

Duquesne Law and Juris experience key changes

H eee we are at the start of another school year and the weather is already changing. Where did

the summer go, ot· better yet did we even have a summer? Well, I surely could not provide an answer either way.

Mter yeat·s of complaining that school did not begin until after the Labor Day holiday, and wishing that school would begin in August, this year our pleas were finally answered. Well, it looks like a case of: Being careful what you wi.sh for be­cause you might get it!

Once August a1·rived, I am sure that most of the students felt as I did, that "next year" would have been a much bet­ter time to implement the new calendar.

Many exciting things have happened to both Juris and the Duquesne Univer­sity School of Law over the past few months. We would like to share those changes with you.

First, Juris earned third place in the overall magazine category in the student division of the American Bar Association's national newspaper contest. ]uris has a long history of excellence and has won many awards over the years.

Congratulations to last year's Editot·­in-Chief, Amy Zamborsky, and the entire staff of Volume 27 for doing a wonderful job and continuing the award-winning h·adition.

T he School of Law has just com­pleted its first year under the tenure of a new administration.

As some of you are ah·eady aware, Dean Nicholas P. Cafardi implemented many exciting and some long-awaited changes­an all-elective curriculum after the first year and exams bef01·e Christmas, respec­tively-in the past year.

Additional changes currently are be­ing planned in a further attempt to im­prove and enhance the existing quality of the legal education available at Duquesne. For example, our next issue will feature articles on Duquesne's intemational con­nections; the School of Law is planning to offe1· exchange programs with law schools in China , Ireland and Costa Rica.

A new era of legal education is on the expanding horizon here at the School of

2 JURIS Wimer 1995

Law and the students of Duquesne are just beginning to reap the benefits. Opportu­nities, both here and abroad, are rapidly opening as new paths are being blazed.

We, the staff of Juris, believe that if the administration can change (we never would have thought it was possible) well, then so can we. As a result, we have up­dated the entire magazine.

Volume 28 of Juris has a new look, a new feel and a new logo. Both the weight and the quality of the paper have been upgraded.

./uris is now being printed on 80 gloss covered stock that will enhance the overall presentation of the magazine. Many small changes , such as the use of bylines , were also made to the magazine's basic format.

W e would like to thank Jim Kezman of Cincinnati, Ohio for designing our new cover

and for donating his time and advice. Jim works as a f1·ee-lance graphic designer and was a veritable fountain of useful infor­mation on how we could improve the over­all quality of the magazine without sacri­ficing the integrity of the articles.

We are expanding the alumni news portion of the magazine. A "class notes" section is now being planned as a service

The School of Law has effected major changes in its curriculum, making nearly all courses after the first year elective. The staff of the award-winning juris magazine also has revamped all facets of the publication.

to our alumni. We would like to invite our alumni to send any news or stot·ies about themselves or a fdend who is too shy to tell (a shy lawyer-Ha! I made a funny! That one should have gone on the humor page) to help us to get this project started.

Dean Cafardi pried open the doors to the vault (I heard that bats Hew out and had to dodge the cobwebs) and very gen­erously purchased two new Macintosh PowerBook Duo computers for the Juris office at the request of the staff.

Yes, we are boldly marching into the twentieth century (or perhaps we are be­ing dragged; I was never absolutely sure) and acquil"ing desktop pu bUshing soft­ware that will enhance our pt·oduction capabilities and give us greater ceeative control.

Once again I would like to congratu­late last year 's staff. I do not know how you accomplished everything you did con­sidering the equipment (or lack thet·eot) with which you had to work.

B y the way, I have hea1:d an intet·­esting rumor. One of out· old computers is apparently a rare ar­

tifact and the Smithsonian has made an offer to buy it (I told you it belonged in a museum). Evidently, the offer they made more than covered the cost of the old equipment, enabling the administration to be magnanimous. As I said this is just a rumoe.

We would welcome any constructive ceiticism on our effons or suggestions (good jokes would help) as to how we can further improve ]uris. Please be kind, as we are law students and not publishers.

What you see before you is the result of our initial efforts. As the year progresses, we too will be planning and implementing additional changes to the magazine in an effort to continually en­hance and improve the overall quality and readability of the magazine.

Sincerely,

~S<--.<--Faith D. Slampak

Editor-In-Chief

Crime or Punishment? Tbe critics misfired when they claimed the media poorly covered the recently passed crime hill. Americans didn't do their homework.

By Faith D. Slampak

Indecisiveness is a characteristic that ,wlli.le I am not proud of, I have definitely honed into an artfor·m.

Originally, this article was supposed to discuss the $30 .2 billion nime bill Pr·esident Clinton recently signed into law. My assignment was to "'peruse the crime bill and discuss the impact of the legislation" or at least that was how my executive editor· interpt·eted my some­what vague statement that I would write some­thing about the crime bill. Well Joe, I meant to .

As I attempted to r·esearch the crime bill, I was amazed that most of the articles I found dealt almost exclusively with topics such as the amount of pork barrel spending attached, what the Black Caucus had or had not done and how the Republicans were tr·ying once again to take a shot at President Clinton.

Very little was wr·itten, except in genet·alities, about what the final bill actually contains. I finally realized that the crime bill's most outstanding feature is that most people were, and are, ill­informed as to what was signed into law.

The most interesting article I read was a story entitled "What did we know and when did we tell it?" in the Boston Globe.

The writer discusses the concerns of readers who had voiced irritation about another Globe story that ran on the front page of the Aug. 27 edition. These r·eadet·s were not upset about the content of the earlier article, but they were upset about when the story was published.

The focal point of the r·eaders' agitation was their percep tion that the press had withheld information and had not kept readet·s informed with timely information. While the belief that the media at·e obligated to keep the American people informed is widely held , it is wrong.

The Globe r·an the story in controversy the day after the passage of the crime bill. The article reported the details of one of the least-publicized features of the crime bill-the matching concept.

The ct"i.me bill contains a mandate that requir·es cities to pay 25 percent of the cost of the much-publicized 100,000 additional

Photo by Gail L. Brannon

Opinion

police officer·s the first year, and a higher· percentage in each successive year until federal funds ar·e phased out completely after year· six.

The unavoidable implication of this provision is cities that cannot afford to pay their portion will not

receive the promised federal funds. The Gl.obe readers were upset. They had supported

the crime bill; some had lobbied fo1· its passage. Yet they wet·e unawarr of this provision and

they felt that someone, preferably the media, should have told them.

Newspapers, magazines, television and rad.io stations do not operate as a public service to the American people. They are businesses that operate to .make a profit. A consequence of that profit motive is that the stories and articles that make it into the headlines are the ones that will sell copies and attr·act viewers and Listeners.

The Amel'ican people like to be outraged. Thus , the amount of "'pork barrel spending" attached to the c rime bill received widespread

attention and the matching concept did not. The media know their audience. Americans

want to •·ead about contt·oversy, not facts. The media did their homework; we on the other hand did not.

We Live in the age of information. The American people are bombarded daily with a

deluge of news, statistics, polls and gossip. Now we hear of a new information super highway that is going to change everything and bring us even more information.

Unfortunately, Like the Globe readers , most Americans do not know how to, nor do we wish to shift tht·ough, the ovedoad of information we already receive daily.

Therefore, we per·mit the media to define the issues and to determine what the imptH'tant facts of those issues at·e. After the fact, we complain that they did not exp lain to us what effect a piece of legislation will actually have on ou•· lives.

The matching concept was not a last-minute rider attached quietly onto the bill to gain its passage. Unfortunately, like most meaningful points of a newsworthy issue, it was lost in the drama of the legislative bicker-ing with which we were all entranced.

Once again we allowed the media to sol't through th e information and define the issues for us , rather than take the time to do it ourselves.

Once again we are outt·aged after the fact , outraged that the media did not do our homework for us with the diligence with which we claim we would have done it ourselves .

The important point is not what the media did or did not do, but what we did or did not do. We need to spend less time complaining and more time defining what issues are important to us.

In other words, we need to do our own homework.

Faith D. Slampak is a third-year day student at Duquesn Uni-versity School of Law and serves as Editor-in-ChiefofJuris.

Wimer 1995 JURIS 3

Cover Sto1~y

By Mark D. Stevens

T he victim was found in a pool of blood and her husband was the first and only suspect. Meanwhile,

the investigation and subsequent murder trial prompted intense, unrelenting and sensational coverage in the press.

Potential witnesses shared their sto­.-ies with the media prior to testifying in court, and a live telecast of the prelinu­nary hearing was beamed to interested viewers.

Some articles about the case were er­roneous, and magazines retouched pho­tographs. Potential jurors also were flooded by daily reports and analyses of the accumulating evidence against the de­fendant.

While this scenario remarkably re­sembles the cm..-ent spate of events sur­rounding the most famous criminal pros­ecution in UnHed States histo1·y-the O.J. Simpson murder trial-it actually was the famous murder trial of Dr. Sam Sheppard, which later served as the basis for the tele­vision show and movie "The Fugitive."

The striking similarities between the two cases are important because the U.S . Supreme Court overturned Sheppard's conviction based on the pervasive influ­ence of the media, which led to a tainted criminal process.•

Despite the lessons that the media and

4 JURIS Wimer 1995

Trial by Nielsen? It)s the trial of the century) and

the media have covered it like no other murder case in recent

memory. Has the publicity tainted jurors and jeopardized OJ.

Simpson )s right to a fair trial?

the criminal justice system should have learned from the Sheppard case, an eerie parallel developed in the Simpson case almost from the start.

The media and public fascination with the football Hall of Fame•·'s case began in an ominous way on June 17,1994. On that evening, America sat spellbound as Simpson, cloistered in his now-famous white Ford Bronco, cruised the Los Ange­les freeways with a contingent of police officers in slow pursuit.

S o dramatic was this event. that all major networks broke away from their regularly scheduled p.-ogram­

ming-including the vastly popular NBA finals-to show the "chase" live. From that point on, daytime television changed from the Young and the Restless to the People v. Simpson.

The developing soap opera that has become the Simpson case provides an ex­cellent vehicle to study the impact of pre­trial publicity on the criminal justice sys­tem.

Ever since the Lindbergh Baby kid­napping case in the 1930s, courts have struggled with what role the media does and should play in eriminal t.-ials. How­ever, recent developments have essentially changed the trial forum from the court­house to the headlines and talk shows.

The media and the crimina] justice

system often have competing interests in a criminal trial. The media have an obli­gation to gather and distribute informa­tion while the courts must protect the I"ights of the accused.

Sometimes, affording that p•·otection to a cl'iminal defendant results in limita­tions on the information available to the public. Various techniques have been em­ployed, such as the imposition of gag or­ders, the closu1·e of heal'ings and the se­questration of juries.

Despite the criminal justice system's built-in precautions, the possibility that media coverage will taint the criminal pro­cess continues to be very real. Pervasive pretl"ial publicity is a concern in the crimi­nal realm because all statements are fair game in the media, and it seems as if noth­ing is too prejudicial.

In other words, the media provide a forum in which there are no evidentiary or p•·ocedm·al rules to inhibit the actions of the attorneys or the repo•·ters them­selves. This circumvents the judicial pro­cess and can impact a trial in many ways.

For example, conside•· the actions of both the defense and prosecution in Simpson's case. Their abhorrent use of the media to manipulate the criminal justice process has, potentially, tainted the jury pool. Neither side is innocent; the advo­cates' actions amount to tampering with the system.

The prosecution began its shenani­gans almost immediately. On the day Simpson was arrested, Los Angeles County District Attorney Gil Garcetti appeared on the nationally broadcast "Nightline" pr·o­gram and stated, "\Ve have a man who was fleeing, and that fact alone, in our mind,[ sic] establishes a consciousness of guilt. " 2

Several days later, Gar·cetti stated: "Well, it's not going to shock me if we see an O.J. Simpson, sometime down the road -and it could happen very soon, and it could be months from now-say, 'OK, I did do it, but I'm not responsible. "'3

In all, Garcetti had racked up six net­work television appearances before Simpson was even arraigned. 4

W hile the prosecution was mak­ing its electronic tour of the television talk shows, the de­

fense was explaining to the press that Simpson was very depressed and exceed­ingly emotional, apparently in an effort to gain public sympathy for the sports hero. 5

Other evidence of the defense strat­egy can be gleaned from an article that Robert Shapiro, Simpson's lead defense attorney, authored for The Champion, a publication of theN a tiona) Association of Criminal Defense Lawyers.

Shapiro's piece is entitled "Using the Media to Your Advantage," and it suggests that defense counsel should repeat phrases suggesting innocence in the hope that the repetition will make the statements as good as fact. 6

Apar·t fwm the public posturing of both sides, the pretrial publicity had an immediate and substantial impact on the proceedings themselves. Superior Court Judge Cecil Mills dismissed the Simpson grand jury because it allegedly had been tainted by the release of the now-famous 911 tape in which Nicole Brown Simpson is heard being threatened, allegedly by Simpson. 1

Regardless of whether this recording will be admitted in the trial, its broadcast was prejudicial to Simpson. If the pros­ecution had chosen merely to withhold the tape and then present this evidence at trial, theeffortsurelywouldhavebeen met by strenuous objections from the defense.

Potentially, the tape could have been excluded and its emotional and persuasive value would have been lost. The prosecu­tion, though, took the easy way out and forwarded the infor·mation to the press.

This tactic ensured that Simpson was portrayed as a spouse abuser·, which un­doubtedly had a negative impact on his public image.

Ironically, the tapes were released just hours after prosecutor Marcia Clark was forced to admit in open court that the state did not find a bloody ski mask at Simpson's residence as had been widely reported. 8 One may argue that the pros­ecution feared it was losing the public re­lations battle and felt that action of some form was necessary to once again gain an upper hand.

The media also have exploited the 1989 spousal abuse charge against Simpson to suggest that he had a violent

Recently Judge Ito joked about the media's ability to scoop up new infor·ma­tion when he said, "I read in the calendar section of the paper that there are two new suspects in the case: Ben & Jerry. " 11 This was in response to a media report that a still-frozen dish of ice cream was found at the crime scene.

Further addr·essing the effect of pre­tr·ial publicity, Judge Ito opted not to re­lease pictures of the homicide scene. The photos would "impair Simpson's right to a fair trial" Ito decided. 12

Ito continued by explaining that the "public display of these items to the news media would inevitably lead to graphic, sensationalistic, lurid and prurient de­scr-iptions-accurate and inaccurate­that would paint mental images in the minds of potential jur·or·s that would prejudice the right to a fair trial of both parties. " 13

Shapiro suggests that defense counsel should repeat phrases suggesting innocence in the hope that the repetition will make the statements as good as fact.

history and was capable of murdering the two victims. Simpson's plea of nolo contendere to a charge of spousal battery9

never would have been presented to ju­rors because in most jurisdictions, this evidence would not be admissible.

Yet in the venue of the media, every­thing is fair game as long as it will increase circulation or garner higher r·atings. And once again, the parties themselves help to fan the flames that generate a burning in­terest in the Simpson case.

For instance, District Attorney Garcetti further contaminated the jm·y pool when he explained that Simpson had received special treatment and.that his plea in the spousal abuse case was a ter-­r·ible joke. 10

Judge Lance Ito, who is presiding over the Simpson trial, has recognized the im­pact of the pretrial frenzy on the jury pool.

Judge Ito's precautions, however, have been insufficient to reduce the im­pact on the jury pool. More than 1,000 persons wer·e summoned as potential ju­r·ors for the trial, 14 and this large number can be attributed to the need to overcome the effect of publicity.

There are many different repercus­sions pr·etrial publicity has on a jury. The first is the possibility that potential juJ"Ors would have a pre-formed opinion of the case. Although most persons would claim they could put aside any initial conclusions they may have drawn, the truth is that their opinions will die hard.

Our system is based on a presump­tion of innocence; but how can that pr·e­sumption remain if we all know the results ofthe DNA tests, have heard the 911 tape and are aware that Simpson fled arrest with $10,000, a plane ticket and a disguise?

Winter 1995 JURIS 5

CoverS tOJ)J

Individual opinions have been formed and even those of us who answer the question "Do you think he's guilty?" with the correct answer of "no, I think he is innocent until he's proven guilty" still have been impacted by publicity.

The confusion surrounding this issue is evident from a recent USA Today polJ of prospective jurors in the Los Angeles area. Of those surveyed, 52 percent be­lieved they could be objective jurors , and 50 percent believed Simpson can get a fair trial.

Yet when asked whether they be­lieved Simpson was guilty, only 44 per­cent responded they wet·e unsureY

In other words, 56 percent of those potential jurors surveyed had reached a conclusion on Simpson's guilt or inno­cence. How can Simpson receive a fair t•·ial if 56 percent of the people have de­cided on his g11ilt or innocence prior to the trial?

Another danger of pretrial publicity is the possibility that a juror willr·each a decision on guilt or innocence based on information he or she acquired from the media and not from the criminal t.-ial pt·ocess. If the media continue to report that DNA tests show a positive match be­tween Simpson and the blood samples from the murder scene, can any juror disregard this information if Judge Ito refuses to admit it as evidence?

Because the courts remain divided about the reliability of DNA test results, the possibility that the DNA results will he inadmissable is very real.

would have a difficult time remembering tial monetary windfall that is available to exactly what was introduced thr·ough tes- witnesses, jurors and attorneys demon­ti.mony at trial. strates , in part, the negative impact that

It would be especially difficult to dis- sensational coverage can have on the cern what the juror learned at trial from criminal justice system. that gleaned from pretl'ial press reports. WilJ the prosecution call the employee In other words, there is potential for hon- of the cutlery store where Simpson aiJeg­est confusion. edJy pm·chased a stiletto knife? Is the fact

Further, there is the possibility that that the employee sold his story dispositive pr·etrial publicity will prompt jurors to of his credibility? The defense will make eschewtheirownreasoninginfavorofthat it appear· that the motivation was mon-of some television commentator. etary gain, which will impact the jury.

Daily, the airwaves and newspapers In othe•· words , the media frenzy could are filled with "expert" evaluations and be directly responsible for a c•·edibility de­conclusionregardingtheday'shappenings. cision the jury will make and could indi­Ajnry member who has heard ,for instance, rectly impact the entire pl'Oceedings. Leslie Abramson give an evaluation of the In fact, Allen Wattenber·g, the cutlery police officers' actions on the night of the salesman, explained that he sold his stor·y mm·ders might well defer to her "expert because others were doing it and because opinion" and not give the evidence pre- he was being besieged by the press. So sented at trial an unbiased review. Wattenberg decided it was OK to "get

Moreover, the cameras present in the something" for the story. 16

courtroom can have multiple effects on the As long as witnesses have a financial criminal pr·ocess. By virtueofthegavel-to- stake in "juicing up" their stories to make gavel coverage that occurred at least in the them more salable to the media , the•·e is pretrial stage, everyone was able to witness the potentia lfor abuse in the system. the pr·oceedings. With this media frenzy Wattenberg is not the only witness comes the inevitable public opinion. who was tainted by the media frenzy. A

There is no doubt that Judge Ito sees key prosecution witness, Jill Shively, told to his duties in a just and equitable way. the grand jury that she saw Simpson driv­However, it is possible that public opin- ing his Fo•·d Bronco throughout his ex­ion can impact a high profile trial. In light wife's neighborhood. She reported that of recent cases .such as the Rodney King Simpson looked agitated. beatings and the Reginald Denny trial , it Unfortunately for the prosecution , is possible that a verdict can be influenced Shively first told her story to the televi­by public opinion. sion tabloid show Hard Copy for· $5 ,000.

In the King and Denny cases, the opin- Once the grand jury was dismissed, the ion poll came in the form of the civil un- prosecution opted not to put Shively on rest. This is not meant to fault the presid- the stand during the preliminary hearing . 17

H owever, trial attomeys know the ing judges o•· juries, but rather to high- The end result was that another po­futility of having a judge in- lightthepotentialforave•·dictduetopuh- tentialpieceoftheSimpsonpuzzlewasdis­struct the jury to disregard some- lie opinions. credited before the defense ever asked a

thing that was brought to their attention Excessive media coverage also im- question . dm·ing the course of the trial. Once the pacts proceedings by introducing the pos- Were potential jurors less than bon­information is planted in the jurors ' sibility offame and notoriety. The poten- est during voir dire due to their desire to minds through pretrial ~!"""""!~!"""""!~~~~~~~~~~~~~~~~~~~~~~~~~ sitonthejury'? ltseemsen-puhlicity, there will cer- tirely possible due to the

tainly be some effect. After its existence had been potential financial reward That is not to say that that most certainly will

jurOI'S would intentionally widely publicized, Clark was come at the close of trial. ' disregard the system's A1·e potential jurors an-

framework and consider as forced to acknowledge that swering questions with evidence what they heard thoughts of selling their ex-pt·ior to becoming jurors. llO SUCh mask eXiSted. elusive stories to The Na-The trial is expected to last tiona! Enquirer after the several months; any person trial ends?

6 JURIS Winter 1995

Unquestionably, the most troubling as­pect of the media's coverage has been the inaccuracies. Although the fear· of exces­sive pretrial publicity tainting the jury pool is very real , that fear is multiplied when one considers the plethora of media errors.

The criminal process is equipped with many protections that oper·ate to exclude innuendo, unnamed sources and improp­erly acquired evidence from being intro­duced at the defendant's trial. The system is delicately bal.anced to ensure some form of justice.

U nfortunately, the media play by different rules. Repo1·ters and editors aim to get the "scoop" with­

out won-ying about getting it right, as long as they get it first. 18

As an example, take the charge that Clark, the prosecutor, was at the Simpson estate prior to the issuance of a search warrant. This allegation was widely re­ported, but, in the end, it was inaccurate.

The mistake-the time flashing on the video camer·a was p.m. not a.m., and thus Clark's visit to the estate bad occurred late in the day after a warrant had been issued -was not corrected before the story went national. But the damage was done be­cause the possibility of pr:osecntorial im­propriety had been raised in the report.

Remember the bloody ski mask found on the grounds of Simpson 's home? After its existence had been widely publicized, Clark was forced to acknowledge that no such mask existed. This incident shows how excessive and inaccurate publicity can hurt all parties.

The fact that the ski mask did not ex­ist should have been minor because the prosecution never stated that it did exist. The report of its existence made it into the media through "investigative 1·eporting."

Misrepo1·ting of this type could impact the trial because some people will decide that the s tate's case against Simpson is not

References L Sheppard"· M(lxwe/1 (!Varden) , :l84lJ .S. 3:33 (1\166). 2. Suoan Gilles . . 48:1 ProposCII Mrulclies l'retri,rl Publicit~· Wuters. N ,IT'I. L.J., Ang. 15, 199•1, a t ,\19. 3. Gail Diane Cox and D.J. Debenedicti•. 0.}. Pros.•mtion i• lJ.,\. 's Debut, N IT'L L.J .. July 4, 1994, at A4. •k Jd. ~. Jd. 6. 1<1.

all it was 1·eported to be in the press. Therefo1·e, some may reach the conclusion that the prosecution is not trustworthy.

Newspaper articles also suggested that DNA tests proved that a sock found at the Simpson estate had Nicole Brown Simpson's blood on it. Judge Ito testily ex­plained that these reports were inaccurate.

Saying he was outraged by the error·, the judge went on to chastise the televi­sion station that had aired the story. The irresponsibility of disseminating incorrect reports, Judge Ito said , "causes .me to wonder about professionalism and ethics" in the news media. 19

Both the prosecution and defense agreed that the inaccuracies were trouble­some. Both stated that they were willing to support nearly any action Judge Ito would take in restricting media 's access in order to protect Simpson's right to a fair triaJ.2°

The truth is that there is little that can be done to restrain the media from cover­ing a story. Moreover, nothing should be done to restrain the press as long as all sides recognize the potential impact sto­ries that published or aired can have on a trial's outcome.

The most sel'ious problem develops when the competing media, in seareh of a "scoop," allow themselves to be manipu­lated by the parties who are trying to cir­cumvent the safegua1·ds of the criminal judicial proeess.

Judge Ito recently commented on the r·ole of the media when he stated: " ... Evi­dence is not evidence until it comes from [the court room], not from the eleven o'clock news. " 21

The rules of c!'iminal procedure and evidence are essential to the fair adjudi­eation of any case. That is not to say that the pr·ess must avoid the story; r·ather all reports should be written or aired with an eye toward the potential impact they will have on the rights of the defendant and of the state.

7. Bill Torque, He 's Going N~tts, NEWS1l' EEK. July 4. IIJ'J4, at23, 24. 8. Jd. '1 . Tessa Namuth. Wl!<!n did Ire Stop Beating lri. IVife?. N~Ws1lU:K, June 27, 1994, nt 21. 10. Jd. I L Shi•·ley Perlman, VA Wants 10 Un.<eal 0.]. Secret j,;,.velope, N1:w~DAI, Au~ . 10, 1994, at AS. 12. Shirley Perlman, Six Plwtos Reka•ed ;,. O.J. Cme, N~~'II'Sll.ll', Aug. 1:!, 1'194, at A6 . 13. /d. 14. /d.

T be S ilnpson Trial

A ny solution must be based in part on the discretion and ethical boundaries that limit an attorney's

ability to comment on the trial in which the attorney participates.

The solution must also include self­imposed restrictions by the media. Thes t·estrictions must recognize the delicate balance that exists in a criminal trial and ensure that the media will act responsibly with the interest of the accused in mind.

This journalistic responsibility bas not been present in the coverage of the Simpson case. Judge Ito described the impact of pretrial coverage when he said, " I'm so saturated by the irresponsibility of the media that I'm beyond being out­raged [because] I'm almost numb to it at this point. " 22

The age of information has entered the cour'thouses of Amel'ica and brought with it both welcome and unweleome changes. Television cameras are now com­mon in courtrooms, replaeing the age-old sketch artists.

Trials, like sporting events, ar·e broadcast live with periodic interruptions for attorneys and professors to explain or critique the 1·ecent happenings. Verdicts are sometimes nothing mor·e than a na­tional opinion poll.

Unfortunately for Simpson, Clark and the criminal justice system, this trial has been going on since the first broad­caster took the air to tell us about the chase. Since then, Simpson has been ac­quitted and convicted several times in the media .

P erhaps the answer is that law schools should teach marketing and not criminal procedure; then we would aU be ready to praetiee law in the busiest and most pow­erful jurisdiction of aU, the media.

Mark D. Stevens is a third-year day stu­dent at Duqu.esne University School of Law.

15. Sally Ann Stewart, Tire 0.}. Frenzy: Media Slip 11p i11 Dash to be First, USA Tonn, July 18, 1'1'14. at20. 23. 16. Devrn Ro•cnberg, Body of Et•idence. N•:w~nw, July II, 1994, at 20, 23. . 17. Torque, aupra nute 7 , at 25. 18. Stewart, sr,pra note 15. at A.2. 19. Peop/R. v . Simpson, BA097211 Lo• Angclc• SuJ.Irrinr Court, 1994 WL 515806 •2 (Cal. Snper. Trans .). 20. ld. 21. ld. 22. ld.

Wimer 1995 ]URIS 7

Articles

School choice may be the cure for the ills of education By Glenn E. Camus

They who educate children well, are more to be honored than they who produce them; for these only gave them life, those the art of living well.-Aristotle

As the end of summer approached, thoughts of classes resuming filled the minds of many children. For teachers in many public school districts, thoughts of salary negotiations and picket lines once again filled the air. After all, what would it be like if just one school year began in west­ern Pennsylvania without a teacher strike?

Some parents boast of their school district's national recognition and heartily support higher salat·ies for their teachers. Other parents complain of the lackadaisi­cal attitude some teachers have toward their profession and oppose what the par­ents call teacher greed. Educators defend themselves by saying they have given up high-paying private-sector jobs to teach in the public school system.

However, one common ground for both parents and educators is educational re­fot·m. Our nation's public schools breed mediocrity. A 1988 Gallup poll showed that 64 percent of Americans would give the public schools a grade of "C" or lower in their effectiveness of educating our youth.'

Advocates of educa tiona! reform argue that changes easily can be accomplished through the medium of educational choice. Many reformers view school choice as the panacea for the ills plaguing the nation's public school system. 2

There has been a continual struggle ovet· the idea of educational choice, which has been placed in the limelight mot·e re­cently with the p1·oposed school choice bills in the Pennsylvania Legislature. Put sim­ply, school choice is the privilege of par-

References

l. Alec M. Gallup and Stanley M. Elam, 20th Annual Gallup Survey On Public's Attitudes Toward The Public Sl"hools 36 (1988) . 2. J011N E. Cm.:ou & TF.RRY M. Mot::, Pot.mcs, MAHI\.f:TS ·\ NO AMt:UICA 's Sr.HOOI.s, 215-26 (1990). 3. See United States Dep't ofEduc., Off. of Intergovernmental and Interagency Affairs, Ctr. For Choice in Edic., Review of State Choice Legislation (Sept. 1992).

8 JURIS Winter 1995

ents to select the school which their chil­dren will attend. These schools-public or private-can be located either inside or outside the district in which the family re­sides.

Financial support for this choice comes in the form of a subsidy or income-tax credit to the parents or legal guardians of the schoolchildren. Pennsylvania's pro­posed plan includes a $900 voucher to be used to send a child to the school of the parents' choice. Heavy lobbying against the bills by Pennsylvania's two major teach­ers unions, the Pennsylvania State Educa­tion Association and the Pennsylvania Fed­eration of Teachers, was enough to defeat the legislation.

However, the success of the teachers' unions was not effective enough to dispel the idea of educational choice. Only a few states at this time have any similar pro­grams, although a 1992 United States De­partment of Education t·eport showed that 37 states had some form of choice legisla­tion pending. 3

Concern over school choice is not a new movement. Adam Stnith wrote of the con­cerns of the state paying for a child's edu­cation in 1741.4 John Stuart Mill supported the idea of tuition vouchers for public and private schools in the mid-nineteenth cen­tury.5

In 1955, economist Milton Friedman advocated state-supported educational vouchers that he theorized would inc1·ease competition and break the monopoly of public schools while also giving poor fatni­lies access to higher quality education. 6

This thought was reintroduced in 1990 when the Brookings Institute, a liberal think tank, proposed that schools shouJd be based on a competitive market model and that the open competition among pub­lic, private and parochial schools has the

4. ADAM SMITH, AN INQUIRY INTO THE N.\11111t: Al''U

C.\USt~~ Ot' THt: Wt:\LTH Ot' NATIONS (Edwin Cannan Ed. ,1937) (5th Ed. 1741). 5. JoHN S1l!ART Mn.L, PIIINaPu~ OF Pou'l1l:.\L EcoNOM\' (Ashley Ed .. 1915). 6. MILTON FnLEOMAJ", C.\I'ITAI..ISIII ANO FRF.f.IJOM 85-108 (1962). 7. Cmmu & Mor., supra note 2, at 217. 8. Corruu.for Pub. Educ. aud Religious Liberty''· Nyqui&t, 413 U.S. 756, 794 (1973). 9 . Mueller v. Allen, 463 U.S. 388 (1983).

capacity to bring about the kind of change that is so desperately needed.;

Many proponents of school choice ar­gue that voucher and tax credit plans vio­late the Establishment Clause of the First Amendment to the United States Constitu­tion . History has shown, however, that whethe1· a violation of the Clause occurs may depend on the form of the subsidy.

In 1973, the U.S. Supreme Court struck down a New York statute that granted parents a sta te income tax deduc­tion from theit· adjusted gross incomes for each dependent attending a non-public school. The Com·t so mled because there was no mechanism in place to ensure that state money would not be used for religious purposes. 8

In 1983 however, The Supreme Court in Mueller v. Allen upheld a Minnesota tax­benefit program allowing parents of both public and private schools to deduct up to a certain amount of the expenses associated with educating their children from state income tax returns. 9 What Mueller suggests is that direct payments to parents, t·ather than to schools, may prevent a violation of the Establishment Clause.

One concem of those opposed to school choice and the accompanying financial in­centives is that there wouJd be fewer dol­lars available to support the public school system. Opponents of school choice argue that this will result in school tax increases.

There at·en't, however, too many school districts where annual tax increases have not been occu1·ring under the cut-rent system. With 43 different public school dis­tricts in Allegheny County and with teach­ers' unions pitting one district against an­other, it is dil'ficult to envision that the pub­lic school system always is looking out for

See EDUCATION on page 27

10. Schools oJThor.ghu; My Modest Proposal lO lnprove Education Thror.ghoul the Region, Prn'SIIURCII Po.."T-GM'EITt:, July 24, 1993, at 83. 11. Ronald Bowes, Our System Cripph>s the Authority of Poor Parents, PtTTSIIURGII PosT

GAZt:rn:, Ft•b. 4,1993, at 83. 12. Walter Shapiro. Tough Choice Lamar Alexamler Clai1rM to Have a Cure for t.ltf' Sorry U.S. Public-School System, Trm:, Sept. 16, 1991, at 54.

Education

Student Teaching A Professor of English finds out what it is like on the other side of the lee turn

By Mary R. Castelli

Well, I have finally made the move from outet· space to law school.

Most people would say it is the othet· way m·ound for them. They have gone fwm their normal lives and normal jobs and have made the move to an unfamiliar world consisting of jurisdictional questions, torts and consideration.

But I, on the other hand, have come fwm a world so bizarre , so diffe t·ent and so, well, foreign to some that it is beyond compare.

I am a professor of freshman English. Yes, I did say freshman. Freshmen, those discombobulated

beings who, beleive it 01· not, sometimes sbow up for class without their heads! Needless to say, it is most emban·assing and dist·uptive to the class when this happens.

You can see why I am delighted at mid-day to leave the undergraduate world in outer space and make my flight to the law sc bool.

Ah . . .law school. I have been waiting years fot· this moment. I realize now, though, that when I am up at 2 a.m. briefing cases for Professor McClendon's torts class and trying to answer the unanswered questions of the day, my freshman students are at Loafer's or some other bar with their fake IDs getting inebriated.

But is my first-year law experience really that diffet·ent from the freshman undergt·aduate expet·ience? Come to th.ink of it, there was a woman who came to Professor Murray's contract class one njght without her head.

I guess I didn't really notice because I fot·go t mine. It 's funny how you don ' t notice things when that happens.

Even when you remembet· to bring your head along to class, there are no guarantees I realized thi s quickly in Peofessot· Barker's Legal Process and Pwcedure class when he called on one of my peers to answet· a ques tion.

He let the student go on for quite some time explaining in great detail the ·'answer." The whole class was diligently taking notes as the pwfesso r questioned, and then continued to question the student.

This was better than "L.A. Law," I thought.

At the end of the inten·ogation-1 mean questioning-we all had a set·ies of scribbles and scratch marks on our notes indicating that the student had no

idea what the answer was. Luckily we all worked it out and discove•·ed the answer. .. . eventually.

Oh, the Soct·atic method. I think it may actually work . Do you"? If you do , why? Jf you don ' t , why not?

When I go home at night , I again hear the wot·d " why." It echoes through the halls of my home . My two-y ea t·-old daughter Angeli na needs to know why mommy has been away all day, why mommy catTies so many books, why mommy will not let het· color with her Barney markers on the pt·e tty, yellow notebooks, and why mommy pulls her hair. out now when she reads.

My freshman students ask many "why" questions as well. "Why do I have to take English when I am a physicaf therapy majo1·?" "Why do our papers have to be typed?" Hey, if I cou ld go Lack in time I would go.back and tell Socrates to put a patent on that Soct·atic method . He could have made a mint!

No , I did not major in finance. J majored in Spanish and had never t·eally intended on Lecomi"Og trilingual . Of

Mary Cn.'l lcUi Photo by Mary P. 1Hurray

course now that I am a law student that has all changed.

In addition to my books required fot· class, I purchased the large, hard bound Black :s Law Dictionary and the smaUet· paper-back, pocket version as well.

I highly t·eco mmend this pocket vet·sion to eveeyone. It has saved me 011

var·ious occasions by allowing me to comprehend the strange, new language these law professors use. It is my protection, my safeguard, my oxygen whlch a llow s me to survive in my new environment. This pocket version has also aUowed extra space in my backpack fot· additional books.

This new language, if you will, is reall y not that difficult to understand. The onl d1·awback seems to be that now, when I watch any of the many law-1·elated television shows or movies that are out, they are 1·uined f01· me because I am able to deciphet· the fact that they are incon·ectly using legal ter·ms.

See TEACHING on page 32

\'\linter 1995 J URIS 9

Articles

Bar None Some smart choices in selecting classes in the second and third years of law school and a lot of hard work will prepare the student for the new passing requirements of the Pennsylvania Bar Exam. By Dale G. Larrimot·e, Esq.

F or many years, law students who pla nned on prac ticing in P enn ­sylvania could choose courses in law

school based pt·imarily on their interes ts or ca reer plans . This may be changing.

Second- and third-year s tudents a t Duquesne University School of Law who are in the process of selecting classes ma y want to reconsider their overall course options. With the renewed emphasis on the essay portion of the bar examination in P ennsylvania , students should be thinking about the bar exam when they elect the nonrequired cour·ses in law school.

As Diree tor of B AR / BRI o f Pennsylvania , I have helped mor e than 25,000 students who have success full y passed the P ennsylvania bar exam . In the las t 20 yea r s, I h a ve b een fr eque ntl y consulted by students from Duquesne and other law schools about the elective eourses they should select to bes t prepa r·e for the bar· examination.

The mos t importa nt ~ ubj ect s have been , and still clearly are, the six multistate subject s, which almost every school covers in the required course cun·iculum.

Th e si x- hour multi p le c hoice Mnltis ta te Bar Exam (MBE ) cover s six subjects: Constitutional Law, Criminal Law and Pr·ocedure, Contracts (including UCC Sales), E vidence, Real Property and Torts. Students must have a strong background i n these core s ubjec t s, whic h a r e a lso double-tested on the essay exam.

For more than 15 years, s tudents were able to pass the ba r exam in P ennsylvania if they did well on these subjects. In recent yea r·s , a 135 sca led score on the MBE would guarantee passing, and you r essay answer s would not even be gr aded . Only if you received less than 135 would the examiners even look at your essay exam.

Sta rting in February ofl995, however-, students must now pass both the MBE and

10 JURIS Winter 1995

essay portions of the exam to the admitted to the bar in Pennsylvania, with a 135 now being a required minimum scor·e on each. Now you must obtain a 135 scor e on the MBE in order for your essay to be graded . Then you mu st score 135 on the essay portion in order· to pass the bat· exam.

E ssa y an swers s uddenly b ecom e extremely important. Whereas before, the essays served as a safety net that could save you if you did poorly on the MBE, now it is an obstacle from which you can fall even if you do extremely well on the MBE.

Law students at Duq uesne might wa nt to keep the subjects on the Pennsylvania essay exam in mind when choosing their

The essay portion of the bar exam in Pennsylvania tests on the following 16 subjects:

•contracts • Constitutional Law • Criminal Law & Procedure •Evidence • Real Propetty •Torts • Federal Income Tax • Federal Civil Procedure • Sales (UCC Atticle 2) • Commercial Paper

(UCC Article 3) • Secured Transactions

(UCC Article 9) • Conflicts of Laws • Corporations • Decedents' Estates •Family Law • Professional Responsibility

elective com·ses while s till in law school. The essa y porti o n of the bar exam in P e nnsylvania tes ts on the foll owing 16 subjects: Contracts, Cons titutional Law, Criminal Law and Procedur·e, E vidence , Real Pt·operty, Torts, F ederal P ersonal Income Tax , Federal Civil Procedure, Sales (UCC Article 2), Commet·cia l Paper (UCC Article 3) , Secured Transa ctions (UCC Article 9), Conflicts of Laws, Corporations, D eced ents ' Es t a tes, Fa mil y L a w, Professional Responsibility.

In plannu1g your law school cun:iculum in li ght of th e n e w emph as is on and importance of the essay portion of the bat· e xam in P e nn sy lvani a, give st rong considera tion to taking as many of these subjects as possible . While an y bar review p1:ogram will cover each of these subjects as part of a course fo r the b ar exam , remember tha t the pu r pose of a ba t· review program is to help you review the law and those issues more frequently tested on the ba r examilla tion.

B ecause of the very short time span between gradua tion a nd the ba r exam , there is not enough time for

you to try to lea rn all of the law tha t those subjects may r equire while cra mming for the b a r. While I per sonally know man y people who have passed the bar in the past without ta king several of these courses in law school, thi s wilt certa inl y be more difficult in the future .

U nfor tuna tely, especially for· current t hird -year d ay or fourth-year evening students for whom this change in the bar is sudden and dras tic, it is likely t ha t some will not have had the time to add all of these subjects to their course load. If you have no t se lec ted yo ur schedule fo t· th e las t semester, you should weigh the ad visability of includ ing cou rses fot· the bar exam in P e nnsylva ni a. H o we ve r , while a ll 16 subjects a r e impot·ta nt , if you cannot ta ke them all, you can still pass the bar exam

with some planning, haed wot·k and a good exam, but each exam is diffet·ent in the review pt·ogram.

Traditionally, students seem to have the most difficulty learning or under­standing the pt"inciples of "code driven" courses in a short review pt"ior to the bar exam. Try to take courses in law school which will give you an understanding of the Unifot·m Commercial Code. The DCC includes three of the 16 subjects on the Pennsylvania essay exam.

While Sales has always been important (as part of the MBE and a frequent essay issue), there have also been repeated issues on Commet·cial Paper and Sec ured Transactions in recent years. \Vithout a background in UCC, some students struggle to gt·asp the concepts behind the law in this area.

Likewise, it seems to be diffi cult to understand some of the subtleties of the Federal Income Tax Code in pt·eparing for the bar exam without any background in that area. The Pennsylvania exam only tests on Federal personal income taxation, and a course in this field during law school would provide an excellent foundation in the sections of the tax code most frequently tested.

It also might be helpful to be awat·e of the frequency with which issues on the various essay subjects have appeared in t·ecent exams. Each of the eight essay questions has multiple subparts, covering various issues or subjects, and the full essay exam usually covers about 29 to 34 separate issues.

T he eight exams from Febt"Uary of 1990 until July of 1993 included subquestions with issues in the

following frequency: Contracts and Sales: 26; Constitutional Law: 25; Evidence: 21; Torts: 21 ; Ct·iminal Law and Pt·ocedure: 18; Real Property : 14; C01·porations: 24; Professional Responsibility: 22; Federal Civil Proceclut·e: 16; Decedents ' Estates: 15; Family Law: 13; Conunercial Paper: 11; Federal Income Tax: 10; Secut·ed Transactions: 9; Conl1icts of Laws: 4.

It is very important to note that there are significant variations fwm year to year. There have been exams with only one Torts ot· Corporations issue and othet·s where thet·e have been more than five .

Almost ever·y subject, with the exception of Conflicts and sometimes Article 9 of the UCC, is tested on each

extent of coverage on each subject. As can be seen, Corporations is the most important nonmultistate subject on the essay portion of the exam, and bar review students seem to appr·eciate a background in basic corporations law.

P rofessional Responsibility is similarly important, but is covered as a required course in most law

schools. On the other hand , Conllicts is the least frequently tested subject on the bar exam, and students seem to be able to grasp its principles, as with those in Family Law, without a stwng background in either of these areas of the law.

Let the bat· review courses do what they do best-help you r·eview and understand the law, emphasize what areas are frequently tested on the bar exam, and teach you how to handle the recurrently tested issues. Take advantage of your law school for what it does best-to help you learn and understand the basics in all of these areas of the law.

As an additional factor to consider in preparing for the essay portion of the bar examination, note that thet·e is a strong indication that the examiners wiU test on Pennsylvania law beginning in July ofl995. Candidates for the bar exam will most likely be expected to know Pennsylvania law in the nonmultistate subjects and non-Federal law subjects tested on the essay exam in the July 1995 examination. This is an added area of concern.

While the focus of this article has been on the Pennsylvania bat· examination, many of these considerations would apply to many other states as well. Unlike Pennsylvania, most states (42) require a special exam on ethics (the MPRE), given three times a year·, in Mat·ch , August and November. Unuke the bar exam, however, you can take the MPRE while still in law school.

If you are practicing in another state, consider taking the MPRE in November ot· March of you thir·d year. With a eourse in Professional Responsibility in law school and an MPRE review, you can obtain the requisite score and remove one of the impediments to your admission to the bar.

Dale G. L«rrinwre is seninr partner in the firm of Deutsch, Larrimore & Famish in Philadelphia and also serves a.s Director of BARIBRl of Pennsylvania.

TbeBarExanz

In the eight bar exams adminstered

between February of 1990 and july of

1993) the issues that appeared most

frequently on the essay portion of the Pennsylvania Bar

Exam were Contracts) Sales and

Corporations. Tbe issues that appeared least frequently were

Secured Transactions and Conflicts of Laws.

Wimer 1995 JURIS 11

A11icles

A Fond Farewell For years) attorneys with questions about death-penalty issues turned to the Allegheny County Death Penalty Project. The Project now has been replaced by a publicly funded resource center. By Bruce Ledewitz

I t is time to say goodbye to the Allegheny County Death P ena lty Project. Since the Spring of 1981 , the Projec t has assisted defense attorneys in death penalty cases

throughout Pennsylvania. More than 200 students have volunteered their time to the Pt·oject over the years.

Some of these students have been dedicated death penalty abolitionists; others supported the death penalty but wanted a fair system.

Some students gave only a few hours; others spent more time on the Project than on their studies. But all of them helped to see to it that the rights of indigent defendants were respected in capital cases.

T he occasion for the closing of the Project is the belated creation of a publicly funded Resource Centet· for death penalty cases in Pennsylvania.

The Commonwealth has th e fourth-lat·gest death row in the United States. Yet, unlike other big death-row states, Pennsylvania has never had a central body to tt·ain and assist defense attorneys, to provide them resources and to coordinate death penalty litigation stt·ategy.

The Pt"Oject was designed to fill that gap temporat·ily. As a volunteet· organization with only the resources that Duquesne Unive~·sity School of Law essentially donated, the Project never could fulfiii the need.

Now a professional and permanently staffed Resource Centet· will do the job that the Project could only approach.

The origins of the Allegheny County Death Penalty Project lay with the former Duquesne University School of Law Dean John Sciullo and Allegheny County Public Defender Lester Nauhaus. It was John, then simply a peofessor, who urged me in 1981 to keep some sort of presence in court and not to become purely an academic.

This advice made sense to me, so I went to see my old boss, Lester Nauhaus, to volunteer to help the Public Defender's Office. Lester already had decided that his office had to make a special effort in death-penalty cases, and he urged me to provide research and other suppot·t in capita l cases fot· his office.

Although I knew nothing about the legal aspects of the death penalty, [had always opposed it. Lester 's offer was the perfect opportunity.

As soon as I started working on death-penalty cases, it became obvious to me that I needed student assistance and that some students would find in the work a chance to express the professional idealism that had brought them to law sehool.

12 jURlS Winter 1995

As I remember it now, that spring I gave the first of what became a yearly talk about the death penalty in Pennsylvania and about the work that students could do.

That talk would later take place each September and there would always emerge a core group of student volunteers as weU as one or sometimes two students who would serve as student dit·ector of the Proj ec t that year. I am not going to name any of these students here . Many names come to me , and many faces. If I started naming them, where would I stop?

In the first few years, the work consisted almost entirely of active involvement in death-penalty cases, particularly Public Defender cases in Allegheny County. I had little direct courtroom experience, so this work was exciting for me and for the students.

Occasionally our clients would receive sentences of death , but usually not. It was dut·ing these cases that I learned how to be a cout·twom advocate, often in clashes with the then-head of the Allegheny County District Attorney's Appellate Office , Bob Eberhardt.

Unquestionably, the most dramatic and intense trial the Project was directly involved in coneerned the brutal murder of Dt·. Jeffrey Farkas in his home in Squirrel Hill in 1989. The case exacerbated racial and religious div·isions in Pittsburgh. The Life sentence for William Yarbough embittered some in the J ewish community and certainly left a lasting impression on me.

As the Project's reputation grew, I began to receive phone calls from around Pennsylvania asking foe assistance in death­penalty cases. This usually meant the pt·eparation of a memo or brief on a particulat· issue that was of concem to the lawyer.

For example, what does Pennsylvania or what do other states say about whether criminal acts committed aftet· the alleged murdet· "count" as part of an aggravated criminal recot·d? This meant mot·e work for students, and it was the type of wot·k that students do well.

But some of the phone ca lls from defense attot·neys were disturbing in their naivete. The callers would sometimes say that they had a death-penalty case starting in a week and they wanted to know what mitigation was.

Sentencing presentations I assumed took months to prepare, and whic h had to be integrated into the tl"ial on guilt and innocence, were being compressed into an afterthought of only a few days.

Of course, questions like that eould not be answered at aU, or if they were answered, the PI"oject ran the l"isk of helping inadequate attorneys become just competent enough to get their clients executed.

The obvious solution was to concentrate on preparing resources and training attorneys in death-penalty cases. Other

The Death Penal(y

states wet·e doing this through public agencies, either Resource Ceo ters ot· Statewide Public Defenders. Pennsylvania had neither and so this task either would go undone or would be pel"formed by the Pt·oject.

In 1982, the Project had put together a manual for Pennsylvania death-penalty cases and in 1984 had prepared a short update .

But by 198.5 , Pennsylvania and fedet·al capital case law wet·e developing rapidly. The 1986 update expanded to 70 pages of case analysis and. practice pointet·s fot· Pennsylvania.

But some of the phone calls from defense attorneys were disturbing in their naivete. The callers would

As a death penalty abolitionist, I always sought to use the coul'ls to eliminate the death penalty. I was always looking for st1:ategies that would go beyond a life sentence in a particular case.

A numbet· of system-wide challenges we r e raised in death-penalty cases­Pennsylvania cons titutional challenges, cha Uen ges to limits on resources and others -and the Pt·oject contt·ibuted to litigating most of them.

The updates were prepared at two­yeat· intervals from then on and generally t·an about 100 pages . They wet·e distributed at cost in eastern Pennsylvania by the American Civil Libet·ties Union and in the west, by the Allegheny County Public Defender 's Office. The preparation of each of these updates took many months .

sometimes say that they had a death­penalty case starting in a week and they wanted to know

But the issue the Pmject always raised, and the issue the Project for a time was identified with, was the purported mandatoriness in the Pennsylvania death­penalty statute.

The idea originated with Duquesne University School of Law Professot· Pat Basial. The Pennsylvania statute t·equires death (" verdict must be a sentence of death ... ") if ce rtain findings are made, such as when aggt·avation outweighs mitigation.

what mitigation was.

Pt·inted materials were not enough, of course, and in any event tactics wet·e more important than Jaw in secudng life venlicts.

Lester Nauhaus and John Cook organized a wester n Pennsylvania training session, in coordination with Duquesne's School of Law in 1982, but they felt that westem Pennsylvania was not reaUy the problem. The problem was in the east.

By the mid-l980s the problem of capital representation in Philadelphia has assumed ct·isis proportions. The very able Defender Association of Philadelphia was barred from hanclling homicide cases, thus leaving death-penalty cases to the appointment of private attorneys.

Nor were thet·e any standards for eligibility fot· appointment. The result was that Philadelphia contributed about hall· of the number of inmates on Pennsylvania's death row.

T he Philadelphia Bat· Association entered into this area by organizing training sessions in 1988 and 1993, by libet·ally distributing the Project's updates and by

pt·essing for the ct·eation of capital-case standards. In addition, the Defender Association of Philadelphia began

to r epresent defendants in capital cases in 1994. During the Defender Association's preparation phase, the Project pt·ovided training assistance and materials .

Another t·esout·ce the Pt·oject created in the mid-1980 's is the death penalty library, a full set of state and federal capital pt·ovisions analyzed by refet·ence to the Pennsylvania death penalty statute. The libt·ary allows very fast retrieval of statutory pt·ovisions comparable to those in Pennsylvania , but worded with sufficient diffet·ences that no computer seat·ch locates them.

The librat·y has been an invaluable tool. It has twice been copied by the National Coalition to Abolish the Death Penalty. As one of our last effot·ts , students are now thoroughly t·evising the librat·y so that the new Resource Center will be able to use it.

We at·gued that such a requit·ement violated the Eighth Amendment in every

cap ital case with which we were involved. I think the Project came to have the best tt·ea tment of this issue in the county.

When the United States Supreme Cout·t granted cet·tiot·i in Commonwealth v . Blystone 1 on the question whether this requirement was constitutional, we certainly wet·e t·eady. Together with Stefan Presser of the American Civil Liberties Union, the Project wrote large portions of the brief and submitted them to Professor Tony Amsterdam, America's leading death-penalty advocate (who rewrote every word).

We lost the Blystone decision S-4. 2 That was disappointing hut, given the makeup of the Court, not unexpec ted. Blystone was the last chance at knocking out the en tire statute and emptying Pennsylvania's death row. Mter Blystone , aU efforts had to be case­by-case.

The year 1989 was a turning point in the histot·y of the Pt·oject. Until then the Pt·oject had been a lmost exc lu sively a tt·ial-level undertaking. It had achieved success on that basis , both in obtaining numemus life sentences and in training and providing resout·ces for defense attorneys.

But as 1988 drew to a close, it was clear that possible executions in Pennsylvania would soon become a se rious issue.

Pt·ior to 1989, execution warrants had been signed haphazat·dly by Govs. Richard Thombtu·gh and Robert Casey. Stays of execution had been obtained in those cases pretty easily.

I n 1989, the abolition movement in Pennsylvania decided to try to fund a pdvate monitoring pt·oject to keep tt·a ck of the cases of persons on death row -and to gain their trust­

and to prepare and find adequately trained counsel when execution warrants were signed . Pam Tucket-, a Pittsburgh business owner and dedicated abolitionist, was hired as part-time director.

See PROJECT on page 32

Winter I 995 J URI.' I 3

Articles

Two actions make more executions soon possible in Pa. By Joseph S. Koscinski

Pennsylvania's judicial and legislative branches this year have moved to reduce or to eliminate the gover·nor·'s discretion to schedule executions of death-row prisoners in the Commonwealth.

While the Gener·al Assembly's effort to for·ce the governor to sign more death wanants so far has bee n stalled by a gubematorial veto, a judicial decision that largely may have the same effect could prompt further executions in Pennsylvania if the decision is upheld on appeal.

This year, the Commonwealth Court twice r·uled that the governor is requir·ed to issue execution wan·ants within a r·easonable time after the Pennsylvania Supreme Court upholds a death sentence.

In Morganelli v. Casey,l the Northampton County District Auorney sought a writ of mandamus to compel Gov. Robert P. Casey to order· the executions of two persons who had been convicted of first-degree murder and sentenced to death .2 The Pennsylvania Supr·eme Court had affirmed

The failure to issue execution wan·ants, the court reasoned, constituted a breach of the governor's duty to execute the laws of the Commonwealth as mandated by Anicle IV, Section 2 of the Pennsylvania Constitution. 11 The court then again order·ed the governor to issue an execution warrant within 30 days for one defendant and within 60 days for the second .12

Gov. Casey has indicated that he will ask the Pennsylvania Supreme Court to over·tur·n the

Commonwealth Court orders. n On June 3, 1994, Gov. Casey vetoed legislation

that would have required the Pennsylvania Supreme Court to transmit a copy of the r·ecord in all death penalty cases to the governor once the Court has completed its mandator·y review of death-penalty cases. 14

Under the legislation Casey vetoed, transmission of the r:ecord to the governor would have triggered a 60-day period during which the governor would have been required to set an execution date. 15

the death sentence for one defendant in 1988 and ~~~~~~-~ upheld the sentence for the other in 1990, but the ~

The legislation enjoyed wide suppor·t in the General Assembly-it was approved 171-17 in the

Pennsylvania House of Representatives and 40-9 in the Senate. 16

governor had not acted with regard to either case. 3

In his opinion, President Judge David W. RMiiiJ!IIJ Craig noted that the Pennsylvania Death Penalty Procedures Act4 provides that a governor "shall" issue an execution warrant after the Supreme Com·t has completed its mandatory review of a sentence of death. That language indicates """'"""',::~ that the issuance of an execution warrant . ... ..~..,.._. ,

mandatory, the court held. 5

Noting that the statute does not set a time during which the governor must order an execution, the court held that the governor must sign an execution wanant within "a reasonably prompt time frame. " 6 The court then ordered the governor to issue an execution warrant for one defendant within 30 days and for the second within 60 days. 7

The governor then moved to open the court's peremptor·y judgn1ent in mandamus. In a second opinion ("Morganelli II") the Commonwealth Court denied the motion. 8

In Morganelli 11, the court restated its earlier holding that the gover·nor's duty to issue execution warrants is mandatory. 9

Further, the court restated its holding that the governor must issue such warrants within a reasonable time. 10

Supporters argued that the legislation was necessary because Casey had signed fewer· than two dozen

execution warrants since he took office in 1987 and because no death-row inmate had been executed in Pennsylvania since 1962Y

Nevertheless, the governor vetoed the legislation, stating that the r·equir·ement would unduly restrict the time needed for a governor to review death penalty cases . Further·, the governor maintained that the legislation constituted a violation of the separation of powers doctrine. 13

Following the governor's rejection of the death penalty bill, the Pennsylvania House of Representatives voted 166-33 to override the veto. 19

The Senate's attempt to oven·ide failed on a 32-18 vote, short of the two-thirds tally needed to enact the bill despite the governor's veto. 20 A second override attempt failed in the Senate in September and a third try is possible later· this year. 21

.JosephS. Koscinski ~sa third-year day student at Duquesne University School of Law and serves as Executive Editor of Juris .

References 9. Morganelli II , 19\14 \VL 417:H1 at *2. ll\QUIIIEil, June4, 19\14, at B.l. 17./d.

1. 641 A.2d 674 (Pa. Cornrnw. Ct. 1\194) . 2. Morganelli, 641 A.2d at 675-76. :~.hi.

4. p,,, STAT. A NN. tit. 61, § 212:~ (1964) . 5. Morganelli, 641 A.2d at677. 6./d. 7./d. at679. 8. Morganelli v. Casey, Nos. 367 M.D. 1993, 444 M.D. 1993, 1.994 WL 417311, (Pa. Cornmw. Ct. Aug. ll, 1994).

14 JURIS Winter 1995

10. /d. at*:~. 11. /d. 12. /d. at *4. B. Jim Strader,Again , Court Orders Casey to SignDcath.lfla.rrant.s, P1111 .,\IJ~LPIIL\1NQVIllEil,

Aug. 12,1994, at B5 . 14. H.R. 2198, 178th General Assemhly,.l99.3 Sess. § 2 (1994). 15./d. 16. Russell E. EshelnlanJr.,AsExpected, Casey Vetoes Execution BiU, PHII.ADEI.PIIIA

18. /d. 19. Russdl E. Eshelman Jr . , Ho113e Overrides Death·Penalty Veto, Pllll.IDEI.I'III \ bQtlllt:H •• hme 9,1994, at Bl. 20. Russell E. Eslwlmau Jr., Casey'.< Vet.o Survive.< Vote in th. .. Senate. P1111 .. \llELI'III II

l NQL.IIIEil,Junel5,l994,atBl. 21. F1·ank Reeves, Death Warrant Veto Withstands Override Try, Pll'I"SDlfllGII PosT­

GAzt:1'1"E, Sept. 20,1994, at Bl.

The J oh Search

Changes are afoot to make job searches smoother By Erin Larabee

Regaedless of how long the attorney had been practicing, I received the same t·esponse every time I a_sked the question: "What was the job market like when you graduated'?"

The answer invariably was: "The job maeket wasn't this bad ... Law graduates did not have that same sense of urgency to find a job their third year."

First-year law students often have grand expectations about job prospects in the legal profession. The illusion, however, quickly fades into reality by the end of their second year.

Students then realize that a .J lll·is

Doctor degree no longer translates into an automatic job. AJ1 too often, the graduate finds himself or herself in a long and frustrating search for employment.

Students who want to work in Allegheny County will find the job market grim at best. With almost 6,500 attorneys in Allegheny County-the highest amount per capita nationwide-the mat·ket is tight to say the least.

The competition for associate positions is no longer between t·ecent graduates, but is now between recent graduates and those who have been out of law school for several years.

Duquesne University School of Law Dean Nicholas P. Cafardi sympathizes with the students facing graduation. Cafanli believes that job possibilities directly reflect the problems that exist in our local economy.

Attorney positions will not be t·eadily available when the rest of the economy is not growing. The availability of positions depends on the increase in construction projects, contracts and new companies creating an overall growth in the job market.

As dismal as the future may seem, young attot·neys should not despair. The answer may lie in the smaller fit·ms that are

spinning off of the larger firms. Pittsburgh, in recent years, has had a

number of larger law firms break up into smaller firms. For example, Rosenberg and Fenchel recently formed when the firm Riley & DeFalice, P.C. dissolved in 1993.

Dave Rosenberg, a for·mer Riley & DeFalice partner, joined .James Fenchel II,

New clinical programs and an improved Career Services Office aim to ease the transition from law school to law employment

a former associate of Riley & DeFalice to for·m Rosenberg & Fenchel. Fenchel confronted the same fears any person beginning a business faces.

His apprehensions were not un­warranted given the glut of law firms in Pittsburgh. However·, Rosenberg & Fenchel was able to begin operations with serveral long-standing clients from the former firm.

Most young firms are looking for associates who will bring their own clients into the firm's already existing client base. But the concern of not bringing in clients was only one problem facing Rosenberg & Fenchel.

In the beginning, Fenchel had high expectations. He was his own boss. He was a partner after only five years of practice. And he no longer had to deal with the different levels of management associated with a larger law firm.

Even with the 15 years of combined experience in law, Rosenberg and Fenchel found that attaining the level of a functioning business was difficult.

"Law school does not teach you the business end of the law," Fenchel stated.

Small fir·ms may be more flexible. But one of the par·tners, mor·e often than not, will have the responsibility of keeping the firm together by serving the clients on a personal level and generating billable hours.

In a smaller fir·m, the attorney takes

on many r·oles, including supervisor, office manager and accountant. A paycheck may not always be guaranteed, but hard work and long hours eventually may cause the paycheck to increase.

Now, law students are faced with the added pressure of secUL·ing a job before graduation. There is a need for graduating students to be moee versatile. Not only do we need to pass the bar, but we need attributes that will make us more marketable. Dual degrees, expeeience, connections and clients are aU features that will get open the door.

In light of the geowing need foe a more experienced and more diversified geaduate, Duquesne University School of Law is instituting new programs to augment their graduates' marketability.

Cafardi, in conjunction with the school's Career Services Office, has begun to expand the clinical program. Clinical interns gain valuable work-place experience they may not have had previously, and gain possible future job opportunities.

New clinical opportunities are available through hospitals, the Disability Project, the Child Advocacy Program and other in-house clinics. The new clinics are designed to expand the traditional role of attor·neys.

My own experience at the Public Defender's Office has been rewarding. By working hand-in-hand with the attorneys, I have refined my writing skil.ls and improved my research skills. I highly r·ecommend a clinical to all students.

Incoming students interested in entering a dual-degree program, to obtain both a .J.D. and another degree, may find several ar·eas from which to choose. Proposed joint degree programs involve health care management, environmental science and taxation.

Cafardi hopes these programs will be approved and that students who take advantage of them will have more job opportunities.

The r·esource most students rely on to fmd a job is the Career Services Office. The Duquesne University School of Law Career· Services Office has undergone a facelift since September· of 1993.

Compared to other· law schools, the Career Services Office had been poor·ly maintained in the past. Recently, the CSO was rearr·anged to make resour:ces more accessible, and the office has received more materials to aid in the job search process.

See CAREER on page 32

Wimer 199'5 jlJRIS 15

A;ticles

Prospecting In today 's legal environment, finding a good job is like discovering a gold nugget. Some good advice and a lot of luck will help the student's search pan out successfully.

By Paul H. Jeges

A t·e you a law student beginning the fall semester of your second yeat·?

Do you find yourself won·ying about how you 't·e goi ng to obtain your fit·st legal position and what you ' t·e going to do when you get it?

A t·e you a first -year law s tud ent wonderi.ng when and how you should stat·t looking into obtaining legal experience?

Are you a third-year stude nt whose fit·st summer in a law firm didn't go as well as you would have liked?

If you answered 'yes' to any of these q uestions, this al'ticle will provide a few valuable insights into what the future may have in store for you and how you can su ccess fully d ea l with th ese n ew expe t--iences .

During my fit·st year of law school, I was led to b elieve that ob taining legally t·elated employment for the summer was not impet·ative. A few people suggested that the summer between my fi t·st and second year would he my final oppot·tunity to work in a non- lega l field, and they fe lt such an opportunity should not be passed up .

Fu1·ther, a vil'tual flood of demoralizing rejection letters informed me that most law fit·ms hire only second-year students . The genet·a l consensus appeared to be that most students do not receive any legal experience until the completion of their second year of law school.

Content in the feeling th a t I had done all I could , I gave up on obtaining any legal ex perience before my second yeat· of law school. In Light of the cutTent constricted legal job market, tha t adv ice is t·apidly becoming outdated.

Cont1:ary to what I was led to believe, appt·oximately one-third to one-half of my

16 )URIS Winter 1995

classmates returned from theit· summet· vacation with a couple months of legal experience behind them.

How? The a nswet· is a combination of luck, hat·d work and familial connections. The t·esult is that without some fit·st-year experience, a student may be left struggling to obtain a legal position even after their second yea t· of school.

As the job mat·ket continues to shrink, a law student must make the most of every advantage available. Thet·efot·e , you should seize any oppot·tunity to start yom· lega l cat·eet· early.

Having some legal experience only can aid you in the future, and such expet·ience can help you stay one step ahead of the rest of yo ut· c lass . In a few yeal's , th at experience may even be necessat·y to avoid fallin g b ehind your classmates .

F irst-yeat·law students most often fmd that ob taining a Sltmmer job in a law firm is vet·y difficult , a nd many will fail in their quest. Recently, more second-year students also find it inct·easingly diffi cult to obtain any type of summer employment with a law firm.

Howevet·, la w s tude nts have many options to receive some valuable experience without w01·king fot· a law finn. Thet·e are countl ess internship and ex te rns hip pt·ograms offered for school credit , and some p t·ograms will a ccep t fir st -yeat· students .

M a ny law professo t·s hit·e t·esearch assis ta nts for the school year, and many will consider first-yea t·

students . Vat·ious judicia l officers a lso hire law clerks during the school year.

For those students fot· whom a paying job is not important, volunteer programs offe r an exce ll e nt so urce of lega l experience. The Caree t· Se t·vices Office can

pt·ovide you with the information necessa r y to participate in these programs.

For a few first-year students and most second-year s tudents who are fortu nate enough to obtain interviews with law firms , the most important decision will concern choosing the d ght firm. When choosing a firm , there are several things you should conside•· vet·y carefully.

It is a good idea to stal't yom· search with firms that pt·actice in the areas of the law which interest you . You should always ask an interviewer what yo u r r esponsibilities will include .

I d eally, you should choose a f irm that will allow you to perform various legal l'esea t·c h pl'oj ec t s and to dra ft

complaints , briefs and other documents t·ather than copy ing , fa xing, filing ot· ma king coffee .

A good legal employet· will offet· law clerks t h e opportunity t o observe depositions, client conferences, arbitration hea rings, court proceedings and othet· pt·actica l situations .

Anothet· important consideration is ta king advantage of any oppot·tuni ty to intt·oduce yom·selJ to the membet·s of the fi r m f o t· which yo u hop e t o wo r k permanen tly aftet· gt·aduation.

Finally and mos t importantly, you should consider the en vironment in which you will be working during the summer. A miset·able boss or an uncomfot·table work atmosphere can ma ke a summer last a n e ternity, not to mention th at suc h an envit-onment wiH make it impossible to do your best wot·k or make a good impression .

The most effective way to determine if a fit·m provides an ad eq u a te wo d < envit·onment is to ask your inte rviewer. Man y a ttorneys will surprise you will thei t· honesty.

Once you have landed that important fi1·st job, a few simple tips can help make your summer a success and ensure that you receive a permanent job offer. To begin, many students fo1·get the most basic rule of any human interaction: treat others as you wish to be treated.

Make an effort to lea1·n everyone's name and how they wish to be addressed. You should be polite and 1·espectful to everyone, including the support staff, and always keep in mind they aU know more than you do.

Depending on your firm's structure, the secretari.es may have a tremendous amount of control over your work. The amount of time the secretaries devote to you, rather than to the attorneys, and how quickly and how well they type your memos, documents and dictations will be directly propm·tional to how much they like and respect you.

simply being yourself and expressing a genuine interest in your work and your firm's practice areas. Do not feign 1·espeetfulness o1· enthusiasm. No one Likes or, more importantly, respects a shameless brown-noser.

I once ovel'hea1·d two attorneys describing a patronizing summer associate as annoying, childish, transparent and unprofessional. These adjectives are not the ones I hope to find in my letter of recommendation.

To make a good impression, you must always turn in your best work. A successful law clerk will he certain to have all the details of an assignment clear in his or her mind by asking as many questions as necessary befo1·e beginning an assignment.

J oh Hunting

p1·operly because too much ovel'time suggests an ineffieient worker and too little overtime shows a lack of commitment to the firm and your wm·k. You should also be careful not to take on more assignments than you can handle.

However, two simple tips can shave hours off your work load. First, you should learn to use a dictation machine and use it often. Most cle1·ks cannot type fast enough or accurately enough to make efficient use of their time, and, in any event, the firm is not paying cled<s fo1· wo1·d processing.

S econd, a derk should compile a per­sonal record book of samples containing as many va1·ied legal

documents as possible. Most legal documents are not oeiginal compositions, and form books a1·e used heavily fo1· the drafting of almost all documents.

You can start yom· book by always asking an attorney o1· another clerk for an

Therefore, you should tt.·eat all the example of a new assignment you have been support staff with consideration given. Once you have completed an and respect, and you should give assignment, always keep a copy for yourself

them as much time as possible to complete and put it in your sample book. A good any assignments fo1· you. Constantly example book will prevent you from

forcing secretaries to work late becau;e~~;~~~~~~~;~~~~~~~~~~i~~ wasting time and will also provide of your poo1· time management and w1·iting samples fo1· further use. organizational skills is not the way to I have th1·ee final observations. make new friends or to make a good For a break f1·om the unbeat·able heat impression. of the law library on the ninth floor of the

To help you maintain the proper City County Building, you can tl'y the mind set, you should l'emind yourself often fede1·al courthouse near the USX Tower. that you'l'e still only a clerk. Law derks- The federal courthouse library is on especially obnoxious, arrogant ones-are the fifth floo1· and is air conditioned and a dime a dozen. quiet. You probably won't see your law

How well you interact and wol'k with school friends thel'e, but you wil.l woek in others and how well you fit into the fi1·m's Many attorneys have a habit of comfol't. working environment will be very appt·oaching you, rattling Secondly, never forget yon represent impol'tant considerations in the hiring off a complicated factual youl' fi1·m at all times, so keep that in mind committee's decision in whether to make situation and then disappea1·ing. Do not let when you'1·e hanging out on G1·ant Street. you an offer. an attomey out of your sight until you fully If you are JUred, you 1· firm will be making

It is imperative to use your summe1· understand your assignment because any a large financial commitment to you, and position to make as many contacts as future mistakes or oversights will be you1· it will expect a certain amount of possible. When the oppo1·tunity presents responsibility. commitment in return. itself, you should socialize with the To help you when you need it, find an Finally, if all else fails, you can always attorneys in yonl' fi1·m. Do youl' best to get atto1·ney you feel comfortable with early in take up golf. Your new contacts may not involved in your firm's social activities and the summer so that when p1·oblems or guarantee you a job, but from the wa y become a team playet·. questions develop, you will have someone attorneys incessantly ramble on about it,

Another sound piece of advice is to to help you. it must he a g1·eat way to spend a summer. work fo1· as many attorneys as possible. A clerk must be mindful of all This practice will aid your networking deadlines and statutes of limitation. One efforts, show more people the quality of mistake can cost your fi1·m thousands of yon1· work and expose you to various areas dollars and may cost you your job. of the law. A clerk also must work late whenever

The secret of being a good law clerk is necessary. Be careful to manage your time

Paul H. leges is a third year day student at the Duquesne University School of Law and serves as Executive Production Editor ofJuris.

Wimer 1995 JURIS 17

AJ1icles

Just in case ... Legal insurance plans are growing in popularity and acceptance among the public. But what effect do these arrangements have on the legal profession?

By Susan M. Fix

It is a cold, snowy morning. Someone fr·antically knocks on your door and asks you to ca.ll an ambulance because another per·son has slipped on your front sidewalk. After the immediate confusion fades , the fear· of impending liability becomes all too real.

What do you say? Whom should you call? Are you responsible for· keeping the sidewalk clear? How will you ever· pay for a lawyer· if the injured person sues you?

In a society with an insatiable appetite for litigation, people are often overwhelmed by situations where legal advice may be needed. For this reason, legal insurance plans enjoy an increased intet·est and popularity.

Legal expense plans or legal access plans provide speciJied reimbursement for lega l fees under contr·acts similar to that of dental or medical insur·ance plans. A typical plan is designed to provide coverage and benefits for common legal problems encountered by average individuals and their families.'

Rather than paying an attorney a large fee directly when services are rendered, the consumer pays premiums which entitle the consumer· to legal assistance.

The National Resource Center for· Consumers of Legal Services says 7l million Americans-28 percent of the population -are covered by a legal service plan. 2

This is an increase from 1987, when an estimated 13 million middle-income Americans were enrolled in vat"ious legal insurance plans and 17 million others had services available through a group legal services a rra ngemen t. :l Despite these statistics, many people are unaware that legal insurance plans even exist.

Legal access plans have been available since the early 1900s. The Brotherhood of Railroad Trainmen established a lega l aid plan in 1930. Through this plan, union officials advised injured members of their need for· legal representation and referred

18 }URI Wimer 1995

member·s to lawyers chosen by the union. 4

Similarly, most common modem legal plans ar·e offered tht"Ough unions, various or·ganizations, credit cards and employers.

DiJferent plans are available on an individual enr·ollment or group basis. Employer·-sponsored plans are tailored to meet a company's needs and are funded by the employer·, employee or both.

Plans ar·e normally maL"keted through insurance companies or· pt·ivate law firms . Insurance companies sell individual or· group legal plans in a manner· similar to that of other forms of insurance. Law firms often contract with c01·porate clients fot· specifically negotiated benefits and payments under a group plan. Prepaid legal expense plans ar·e generally offered under two customary types of conu·acts 1) closed panel or 2) open panel.

Closed panel contract members access legal services through a specified network of independent provider attorneys. Lawyers are chosen by the plan sponsor, insurer ot· administrator and plan members must use the services of plan attor·neys if they are to receive benefits under the plan. ;;

Referral attorneys are paid a fix ed fee to serve the plan. Reimbursement of provider attorneys can be a fixed fee per capita basis, and the attor·n eys must provide contracted benefit s without additional remuneration , or on a payment per service basis.

Open panel contracts allow plan members to use the attomey of their choice. The member's attomey is then nor·mally r·eimbursed for· quaW"ied services rendered based on usual, r·easonable and customary fees.

The ter·ms open and closed panel have become less important over time because most plans today use a mixtur·e of ser·vice delivery systems to satisfy theit· members' needs. 6

Basic legal service plans generally include access to toll - fr ee phone consultations with pt·ovide r· attorneys, document review, letter writing, assistance

with the c~llection of minot· pi"Operty damages and. pt·eparation of wills.

More compr·ehensive plans include defense of moving traffic violations, manslaughter or vehicular homicide and assistance with an Internal Revenue Service audit. Specialized plans cover par·ticular· professions or occupations such as pt·ofessional truck driver·s or law enforcement officers.

In order to control cost, aU plans Limit coverage or benefits. Some, but not all, legal expense plans limit or deny reimbursement for preexisting conditions, domestic matters , drug and alcohol related matters , delibet·ate criminal conduct and bankruptcy.

Other excluded areas include business matters, matters in which the union or employet· or other plan sponsor would be a defendant, or disputes arising between plan members. 7 Predetermined deductibles and co-payments ar·e also used to discourage frivolous use and abuse of plan benefits. 8

Legal insm·ance plans offer· several benefits to consumer·s: 1) individuals who could not otherwise afford legal services are given the opportunity to access the legal system; 2) lawyers may be willing to reduce fees in exchange for a guaranteed high volume group of clients ; 3) pr·epa id legal plans invite preventive legal care; 4) prepaid legal plans are able to pay for· any single member's substantial legal fees because the risk is spread among a large group of people; and 5) legal service plans allow participating attorneys to pl"Ovide m01·e efficient delivery of services because they are able to predict the types and extent of services needed by plan member·s. 9

Refen·al attorneys and contracting law firms also benefit from group plans because participation augments the client base and generates r·evenue without advertising. 10

Many states regulate carriers of prepaid legal expense plans and these carriers are requir·ed to file with or to obtain approval from the state to oper·ate .

Some states r·egulate legal expense plans as insurance while others regulate them as a service. In states that tr·eat carriers as insur·ance providers, the company may be required to qualify as an insurance company. The firm is then regulated as are other casualty insurers with r·equired minimum capitalization, unimpaired surplus, claim reserves and approval of marketing materials.

In Pennsylvania, legal expense plans ar·e r·eviewed by the Pennsylvania Insurance Department only if a licensed insurance company under·wr·ites the plan. This resulted from a 1988 Pennsylvania Insurance Department task force which, after review of legal access service plans, decided that the Department had no clear author·ity to regulate or· license individual law firms who directly negotiated prepaid expense agreements. Accor·ding to the Insurance Department, nine insurance companies offer some for·m of legal service plans in Pennsylvania.

An attorney who par·ticipates in legal service plans must be cognizant of potential ethical conflicts which might result simply from participation. Commonly recognized ethical considerations include overbearing client solicitation, poor quality of service, fee-splitting with a non-lawyer, breaches of client confidentiality and interference with independent attorney judgment.

Because the legal services consumer does not directly pay the attomey, conflicts of interest can result between the represented party, the third party payor and the attorney.

Rule L8(f) of the Pennsylvania Rules of Professional Conduct precludes lawyers from accepting compensation from someone other than the r·epresented client unless: "(1) the client consents after full disclosure of the circumstances and consultation; (2) there is no interference with the lawyer's independence of professional judgment or with the client-

References L Alec M. Schwartz, A Lawyer's Guide to Prepnid l.egal Services, 15 LEGAL EcoN. 43 (1989). 2. Ronald P. Glantz, Building Your Small Firm. Practice 011 a. Prepaid Poundation, 68 Ft.\.B.J . 48 (1994). 3. Schwartz, supra at note L 4 . Julia Field Costich, Note, }oint State-Federal Regulation of Lawyers: The Case of Group Legal Services Under ERISA, 82 Kv.L.J. 627

lawyer r·elationship; and (3) infor·mation relating to r·epresentation of a client is protected as r·equired by Rule 1.6. " 11

Rule 1.6 governs another ethical concern-client confidentiality. Under Rule 1.6, a lawyer "shall not reveal information relating to representation of a client unless the client consents after consultation." 12 The subject matter of a client's representation is included and cannot be disclosed to a third party payor absent expr·ess authorization.

Ethical issues can also arise when the same legal sei'Vice plan covers two plan members who enter a legal dispute with one another, or when a employee member and an employer sponsor enter into a dispute. Rule 1. 7 provides that"[ a] lawyer shall not represent a client if the representation of that client will be directly adverse to another client. " 13 In order· to protect the best interest of both parties, alternative independent counsel must be provided for one of the parties.

Legal expense plans also pose questions regarding the quality of legal services provided because the client is not paying the usual fee. Financial influences generate two opposite ethical hazards for the participating attorney.

First, there is fear that external pressures to minimize the cost of providing legal services may interfer·e with the provider attorney's professional judgment and loyalty to the client. A second concern is that attor·neys may be financially motivated to provide more services than they would normally pr·ovide for a fee-for­service client.

lf a client requires services beyond the scope of the payments of his or her plan, provider attorneys should attempt to ensure that the member-client fully understands the coverage limitations. This will help minimize any misunder·standing which could result if clients are required to pay for services beyond the extent of the

(1993/1994). 5. Schwartz, .mpru atnole 1. 6.ld. 7. Glantz,srtpraatnote2. 8. Schwartz, supra at note 1. 9.ld. 10. Glantz, supra at note2. 11. Pennsylvania Rules of Professional Conduct Rule .l.8(f)(l),(2),(3). 12. Pennsylvania RuiP-s of Professional Condncl Rule 1.6(a).

Legal Insurance

plan. The Employee Retir·ement Income

Security Act (ERISA) was ena c ted to protect the interests of par·ticipants in employee welfare benefit plans. G1·oup prepaid legal expense plans, p1·ovided as an employee benefit, are regulated by ERISA, unless the plan fits one or more nanow exceptions. 14

This necessitates placement of plan finances into a trust fund for the exclusive benefit of employees, joint administration by equal number·s of employer and employee tJ·ustees and annual aud.its. 15

ERISA also imposes fiduciary duties on a wide range of individuals involved with administration of the plan. 16 In orde1· to escape liability under ERISA, plan trustees should identify the delivery system which best suits the needs of the members served, establish reasonable compensation levels, establish and document a schedule of benefits and make timely payments to eligible beneficiaries. 17 Lawyers directly providing services to plan members, rather than to the plan itself, are unlikely to be characterized as fiduciaries. 18

The high cost of legal assistance and the consequential lack of rept·esentation c•·eates a dilemma in a society based on the ideal of fair representation. Many times, even middle-income Americans are financially precluded from seeking the most basic legal advice.

Legal insurance packages provide some security against catastrophic legal fees and provide easy, early access for common, legal problems. Although legal insurance plans do help society, in some small way, to reach the goals of fair representation and equal access to the judicial system, it most likely will be a long time before "universal legal coverage" is debated in Congress.

Susan M. Fix is a fourth-year evening student at Duquesne University School of Law and serves as a Staff Editor of Juris.

13. Pennsylvania Rules ofProfessional Con duel Rule l.7(a). 14. 29 C.F .R. § 2510.3-IU)(l97S). 15.29 U.S.C. § l86(c)(5)(B),(c)(8)(1988). 16. 29U.S.C. § ll04(u)(1988). 17. Costiclt, supra at note4. 18. See ld. al n. 170-86 for a detailed case analysis leading to this conclusion.

Winter 1995 }URJS 19

Lazu

A taxing situation A Washington County Common Pleas Courtjudge)s decision to revoke the tax-exempt status of a private college could have statewide implications if it is upheld on appeal.

By Alison Fenton

Washington County Common Pleas Judge Thomas J. Terputac ruled on Aug. 5, 1994, that Washington and Jefferson College is not entitled to an exemption from taxes on its real estate. Washington and Jefferson President Howard Burnett indicated the school will appeal the decision. 1

If upheld, however, Judge Terputac's ruling could reach across Pennsylvania to affect every private college and university, including Duquesne University.

I n his opinion, Judge Terputac cited the increased number of tax-exempt properties as one reason why many

cities face financial difficulties and are unable to p1·ovide adequate police and fire protection to their citizens. 2 The municipal loss can be great when schools, churches and hospitals claim tax exemptio'ns.

In Washington , where the college is located , Mayor Francis King said 27 percent of the city 's real estate is tax exempt. '1 If Judge Terputac's decision stands , King estimated, the city would realize $74,000 to $115 ,000 in new tax 1·evenue. 4

To determine what institutions are eligible for tax-exempt status under the General County

Assessment Law, it is necessary to define "purely public cha1·ity." In 1985, in Hospitalization Utilization Project v . Commonwealth (HUP), the Sup1·eme Court of Pennsylvania held that in o1·der to qualify for tax exempt status as a "purely public charity," an institution must: 1) advance a charitable purpose ; 2) donate or render gratuitously a substantial portion of its services; 3) benefit a substantial and indefinite class of persons who are legitimate subjects of charity; 4) relieve the government of some of its burden; and 5) operate entirely free from private profit motive. 8

In HUP, the cou1·t denied the tax exemption .9 Applying the test, the court

began by stating that HUP's purpose in promoting quality health care and effect­ive use of health care services , though commendable , was not cha!"itable . In addition, it concluded that HUP did not 1·ender its services gratuitously because all of its clients were required to pay fees approximating actual cost.

T he court also held that HUP's beneficiaries , hospitals and health care providers were not

legitimate subjects of charity. Applying the last two parts of the test, the court found that HUP's activities did not relieve the government of any burden, and because it could not be distinguished from any other commercial enterprise, HUP had not proven it was free from profit motive. 10

The Pennsylvania Constitution authorizes the General Assembly to exempt f1·om taxation institutions of "purely public charity. "·1 Pursuant to its constitutional authority, the legislature in 1933 enacted the General County Assessment Law. 6

That law exempts from "all county, city, borough, town, township, road, poor and school tax" several types of property, including churches and "all hospitals, universities, colleges, seminaries, academies, associations and institutions of learning ... with the grou~ds thereto annexed and necessary for the occupancy and enjoyment of the same, founded, endowed, and maintained by public or private charity. " 7

The General County Assessment Law exempts from taxation "all hospitals, universities, colleges, seminaries, academies, associations and institutions of learning with the grounds thereto annexed .. .founded, endowed and maintained by public or private charity."

20 J URIS Winter 1995

Specifically, Judge Terputac stated in his opinion that the school did not advance a charitable purpose, because students unable to pay for their education were not allowed to remain enrolled. He held that the school did not donate a substantial portion of its services, as students paid for approximately 75 percent of the $21.2 n1illion the college spent in 1993.

The Commonwealth Court of Pennsylvania used this test in 1992 to deny tax-exempt status to Capital Extended Care, a nonprofit corporation which operated the Harrisfield personal care home.u The court held that Capital Extended Care had failed to meet all the criteria of a "purely public charity."

The court emphasized that there was no evidence the home caeed for people unable to pay for the services. Although the home had a policy of not terminating someone's stay because of inability to pay, everyone who had been living at the home at that time was paying for the services. Therefore, the home did not have a charitable purpose. 12

M ore recently, the Supreme Court of Pennsylvania has reaffirmed and expanded upon the HUP

test. In St. Margaret Seneca Place v. Board of Property Assessment Appeals and Review, County of Allegheny, the court reversed a commonwealth court decision to deny a nursing home a tax exemption and revisited its holding in HUPY

Agreeing with the trial court, which held that the nursing home was conunitted to serving alJ applicants without regard for their financial means, the supreme court held that the home's acceptance of Medicare payments to help defray costs did not prevent it from meeting the criteria of a "purely public charity. " 14

In his recent decision, Judge

Terputac also relied on the test established by HU P. Although he ruled that Washington and Jefferson had met the requirement of operating without a profit motive, it had not met the other four parts of the test.

S pecificaUy, Judge Terputac stated in his opinion that the school did not advance a charitable purpose,

because students unable to pay for theie education were not allowed to remain enrolled. He held that the school did not donate a substantial portion of its services, as students paid for approximately 75 percent of the $21.2 million the college spent in 1993.

The school also did not benefit a class of persons who are a legitimate subject of charity, because, Judge Terputac stated, the students who attend Washington and Jefferson College cannot he equated with those who need care and institutional treatment.

References

l. Bill Heltzel, Washing ton cwd Jefferson Loses its Exemption From State Taxes, Prnsrl!I IIGH PosT-GAZETTE,Aug. 7,1994, at El. 2. /d. 3./d. at E2. 4 . /d. 5. PA. Coi\ST. art. Vlll, §2(a)(v). 6. 72 PA. CoNs. STAT. ANN.§§ 5020-1-5020-602 (1968 and Supp. 1994). 7. /d. at§ 5020-204. 8 . Hosp. Utilization Project v. Commonwealth,

Tax Status

F inally, he ruled that the school failed to meet the fourth prong of the test by relieving the government

of a burden, because local and state governments are not required to provide post-secondary education. 15

Figures were not yet available on the amount of the possible tax assessment against Washington and Jefferson if Judge Terputac's decision were left standing. However, it will almost assuredly be a significant amount of money.

Because of the potentially enormous tax liability that some institutions couJd face if they lost tax-exempt status, rather than fight the denial of an exemption for their real estate, they have chosen to settlf' with the taxing bodies. In settling, these nonprofit or charitable organizations agree to pay a service fee in lieu of paying taxes.

Three years ago, when the current legal battle over tax-exempt status began between the city of Washington and Washington and Jefferson College, the city and school district also challenged Washington Hospital's real estate tax exemptions. Unlike Washington .and Jefferson College, Washington Hospital settled.

In settling, the hospital agreed to pay the city $40,000 a year for the next eight years. 16 In addition, it avoided a long, expensive legal battle which Washington and Jefferson has only just begun.

Alison Fenton is a third-year day

student at Duquesne University School of Law and serves as Law Editor ofJ uris.

487 A.2d 1306, 1317 (Pa. 198.5). 9. /d. at 1319. 10./d. 11. bt reAppeal of Capital Extended Core , 609 A.2d 896 (Pa. Corrunw. Ct. 1992) . 12. /d. at 898. 13. 640 A.2d 380, 386 (Pa. 1994). 14. /d. at 382-38.5 . 15. Heltzel , supra note 1, at E2 . 16. /d.

Winter 1995 JURIS 21

La to

''NO'' A woman says no to sex) and the man who Jails to heed that admonition is charged with rape. But in a controversial decision) the Pennsylvania Supreme Court holds that saying no is not enough to meet the forcible compulsion element of rape.

By Kristin Pieseski

'·'No" is a rudimentary word. Its meaning is uncomplicated and cleac

H owevei·, this elementary term has been t.he impetus of a recent legal cont1·oversy that has raised

the ire of women's groups and prompted demonstrations against the Pennsylvania Supreme Court.

Some would argue that the decision in Commonwealth v. Berkowitz' had very little to do with the definition of the word "no." To the contrary, the victims of rape would argue that this fundamental expression was rendered utterly meaningless by the decision.

In Berkowitz, the Pennsylvania Supreme Court was presented with the task of defining rape . Specifically, the court addressed the question of the precise degree of force necessary to prove the "forcible compulsion" element of rape. 2

The facts of Berkowitz mirror situations that occur all too often on college campuses . A female college student went to the dormitory room of a friend. 3 She knocked on the door and received no answer.

Finding the door unlocked, she entered the room and discovered a man sleeping on the bed : ' Although she believed the man was her fl'iend, the young woman soon discovered that it was the defendant, Robert Berkowitz. 5

The defendant asked his unexpected guest to stay, and a casual conversation ensued .6 The defendant requested that the victim sit next to him on the bed. He also requested that she give him a back-rub. Declining both •·equests, she took a seat on the floor. 7

Thereafte1·, the defendant moved onto the floor next to the young woman and

22 JURIS Wimer 1995

"kind of pushed back with his body. "B He then straddled and kissed her as she responded, "Look, I gotta go . " 9 The defendant continued by lifting her shirt and fondung her breasts. Again she responded, 4"no.

Next, the defendant undid his pants and he, " kind of moved his body up a little bit."10 Although she did not at any time physically resist the defendant's advances , she continued to p1·otest. She responded, "" ~'II no.

With the defendant positioned on top of the victim, he attempted to place his penis in her mouth. 12 She continually protested by saying, "no."

A fter the attempt to place his penis in the victim's mouth had failed, the defendant locked the door from

the inside. Testimony revealed that at this time, the"[ defendant] put me down on the bed. " 13 The victim further explained, "[i]t wasn't slow like a •·omantic kind of thing, but it wasn't a fast shove either." 14

Continually, she responded , "no." The defendant then removed the sweat

pants and underwear from one of her legs and penetrated her. Mter withdrawing, the defendant said , "Wow, I guess we just got carried away." She responded , "No, we didn't get caiTied away ; you got carried away. " 15

Based upon the victim's testimony, a jury convicted the defendant of one count of rape and one count of indecent assault. The Superior Court of Pennsylvania overturned the conviction of 1·ape, finding the evidence insufficient to p1·ove "forcible compulsion. " 16 The•·eafter, the Supreme Court of Pennsylvania g•·anted allocatur. 17

To dete1·mine whether the forcible compulsion element of rape had been proven, the court relied on two prior decisions, Commonwealth v . Rhodes 13 and

Commonwealth v. Mlinarich. 19

In Rhodes, the 20-year-old defendant lured his eight-year-old victim to an abandoned building and instructed the minor to perform sexual acts. 20 The young victim did not physically resist the defendant, but did tell him to stop. 21

When dete1·min.ing whether the forcible compulsion element of 1·ape had been proven, the coUI1: looked to the respective ages of the victim and the defendant, the mental and physical conditions of each, the atmosphere in which the incident took place and the amount of cont1·ol the defendant had over the victim. 22 In light of these factors, the court found that there was sufficient evidence to suppo1·t a finding of "forcible compulsion. " 23

In Mlinarich, the adult gua1·dian of a 14-year-old girl coerced the victim into submitting to his sexual advances. 24 The defendant told his minor victim that unless she complied with his sexual demands, she would be recommitted to a juvenile detention center. 25

The court held that the threat of being 1·ecommitted to a juvenile detention center did not supply the "forcible compulsion" element of the crime of 1·ape. 26

I n Berkowitz, the court cited Rhodes for the proposition that, " [ t ]he fo1·ce nec­essai·y to support a conviction of rape

and involuntary deviate sexual inte rcou1·se need only be such as to establish lack of consent and to induce the [victim] to submit without additional resistance. " 27 The court then stated that "the mling in Mlinarich implicitly dictates that where there is a lack of consent, but no showing of eithe•· physical force, a threat of physical force, or psychological coercion, the "fo.-cible compulsion" requirement under 18 Pa.C.S. § 3121 is not met. " 2

B

The court supported its conclusion by

The Pennsylvania Legislature has defined rape as follows: § 3121. Rape

A person commits a felony of the first degree when he engages in sexual intercourse with another person not one's spouse: (1) by forcible compulsion; (2) by threat of forcible compulsion that would prevent resistance by a person of reasonable resolution; (3) who is unconscious; or ( 4) who is so mentally deranged or deficient that such person is incapable of consent.

18 PA. CONS. STAT. ANN. § 3121 (1984).

compat·ing indecent assault under 18 Pa .C.S. § 3126 with the crime of rape. The court noted that the legislature did not use the term "consent" in defining rape, while consent was a part of the definition of indecent assault. Therefore, the court concluded that the "forcible compulsion" element of rape necessarily entailed proving more than a lack of consent on the part of the victim.

I Based on Rhodes and what was termed

the implicit dictate of Mlinarich, the court concluded that a victim's continued objections-while relevant to the issue of consent-are not relevant to the issue of force. 2~

Thus, the court held that the prosecution in Berkowitz had not established the "forcible compulsion" element under 18 Pa.C.S. § 3121. The decision of the Superior Court, as to the rape charge, was affirmed. The court did fmd, however, sufficient evidence to sustain the conviction for indecent assault.

The controversy sut-rounding Berkowitz is not necessal"ily a product of the outcome of the case, but stems from the reasoning the court utilized to reach its decision . The proposition that the Commonwealth must show more than the victim's lack of consent to prove rape is well founded.

However, the proposition that the utterance of the word "no" is not related to the issue of forcible compulsion is astonishing.

The Superior Court acknowledged that an assailant's failure to heed a victim's oral admonitions is a factor to he considered in

a determination of the "forcible compulsion" element of rape.·10 To the contrary, the Supreme Court of Pennsylvania ignores any implication that a victim's oral admonitions may have on such a determination.

I n effect , the court nullifies any communication that a victim may have with her assailant by rendering

such comments meaningless as to the issue of forcible compulsion.

The court in Rhodes postulated that the forcible compulsion element connotes the act of using superior· force-physical, moral, psychological, or intellectual-to compel a person to do a thing against that person's volition and/or will. 31

It is contradictory to postulate that an individual 's statements have absolutely nothing to do with determining whether

References

1. CommortwerLlth v. Berkowitz, 6-U A.21f 1161 (Pa.1994). 2. Berkowitz, 1\41 A.2d at 1162. 3. Berkowitz, 641 A.2d alll63 . 4. I d. 5. I d. 6. I d. 7. I d. 8. Commonwealth v. Berkowitz, 609 A.2d 13:38 (Pa . Supet·. CL. 1992). 9. Berkowitz, 609 A.2d at 1340. 10. Id. 11. Id. 12. ld. 13. Id. at 1340. 14. Id. 15. Berlwwitz, 641 A.2d at ll6.3.

Rape

force was utilized. What better way to show that an individual is doing something against a victim's volition than by the victim's own response to the situation?

It is important to note that the defendant in Berkowitz testified that the victim did not forcefully say no but moaned the word in a passionate manner. Even though the court must look at the evidence in the light most favorable to the verdict winner-in this case the Commonwealth­it seems the court was influenced by this testimony.

More importantly, the victim never testified that any physical, psychological or moral force was used against her. Therefore, it is not necessarily the outcome of this particular case which has disturbed us, but the supposition that a victim's statements during an auack will not be given any weight in determining what happened.

Therefore, one must focus on the impact the decision has on future rape cases. There are too many instances were individuals find themselves in situations where they are frightened by an auacker.

Some women may not have the ability to physically resist. However, according to the holding in Berkowitz, women will now be forced to do mot·e than say "no" in order to protect themselves.

The Supreme Court of Pennsylvania has set a dangerous precedent in Berkowitz. In effect, the court is telling women that they must physically resist unwanted advances. Women are no longer free to merely say " ')') no.

Kristin Pieseski is a third-year day student at Duquesne University School of Law and serves as Senior Editor of Juris.

16. Berkowitz, 609 A.2d at 1348. l i. Berkowitz, 641 A.2d atll62. 18. Commonwealth v. Rhodes, 510 A.2d 1217 (Pa. 1986). 19. Commonwealth v. Mlinarich, 542 A.2d 1335 (Pa. 1988). 20 . Rhodes, 510 A.2d nt 1218. 21. Id. 22 . Id. at 1226. 23. ld. 24. Mlinarich, 542 A.2d at 1336. 25. Jd. 26. Id. at 1342. 27. Rhodes, 510 A.2d at 122£• . 28. ld. 29. Berkowitz, 641 A.2d at 1164. .30. Berkowitz, 609 A.2d 1347. 31. Rhodes, 510 A.2d at 1227.

Winter 1995 JURIS 23

Ca1npus N ezus

In teaching, Gormley draws on strong writing experience

By Jennifer Swistak

Professor Kenneth Gormley recently joined the faculty at Duquesne University School of Law as a tenure tt·ack professor. He had previously taught at the University of Pittsburgh School of Law for 12 years as both an adjunct professor and a visiting professor.

His areas of specialty include Constitutional Law, State Constitutional Law, Civil Rights Litigation and Legal Writing.

After g1·aduating Summa Cum Laude from the University of Pittsburgh with a Bachelor of Arts in Political Science and Philosophy, Gormley declined a full scholarship to the University of Pittsburgh School of Law to attend Harvard Law School.

Gormley's first impression of Harvard was that it was an "enchanted place" filled with an abundant and wonderful history. To Gormley, Harvard Law's main attraction was the presence of Archibald Cox on the faculty.

Eventually, Gonnley became more than just a student of the man who was the first Special Prosecutor to investigate and examine the Watergate scandal during the Nixon Administration.

While at Harvard, Gormley worked as a teaching assistant to Cox in the area of Constitutional Law. Cox became Go1·mley's mentor and also sparked Gormley's interest in teaching.

One particular memory Gormley holds of Cox is the way Cox, who was one of the most prominent professors at Harvard, always had time for his students and took his role as an educator seriously.

Cox's imprint on Gormley is readily observable with his students. Gormley is a teacher in every sense of the word. He is concerned with students and is open and receptive to their needs. When walking through the School of Law, Gormley is always in the company of students, chatting amicably.

Gormley began his legal career as a law clerk to Judge Donald Ziegler of the United States District Court for the Western District of Pennsylvania.

Later, Gormley was recruited by Dean John Murray, then the Dean at the University of Pittsburgh School of Law and

24 JURIS Winter 1995

Prof•·~.,.,· K'-'JUH"Ih Gonuh.'y Photo By Gail L. Brannon

the current President of Duquesne University, to pilot the Mellon Writing Program, an intensive program which focused on developing the writing skills of minorities and older women.

Gormley also spent a short time as a clerk for Pennsylvania Supreme Court Justice Ralph Cappy, for whom Gormley wrote opinions dealing with Constitutional 1ssues.

Additionally, he served as the Executive Director of the Pennsylvania Legislative Reapportionment Commission. While teaching at the University of Pittsburgh School of Law, he was special counsel to the law firm of Cindrich & Titus and practiced in the areas of federal courts, litigation, constitutional law and appellate practice.

While in practice, Gormley particularly liked estate litigation, as it possessed an exciting aura of intrigue and allowed him to help end fighting between family members.

Gormley said writing is one of his great loves. He is working on a biography of Cox and has completed a novel entitled "The Somerville Bar Review," which he hopes to have published.

In addition to his numerous legal publications, he has contributed several

stories to the now-defunct Pittsburgh Press, the Pittsburgh Post-Gazette, Rolling Stone magazine, The Boston Real Paper and Rolling Stone Record Guide.

Writing always has been an p·eat interest of Gormley's, as in 1977 he 1·eceived the Rolling Stone College Journalism Award and the Keystone Award for Journalism.

Gormley believes writing is a great discipline which ties other areas of life together, and he believes he has the opportunity to influence people through writing. One future goal includes expanding his writing from academics to mainstream audiences.

Gormley lives in Forest Hills with his wife, Laura. The Gormleys welcomed a new addition to the family this summer when a daughter, Rebecca, was born on July 10, 1994. Gormley also has a five-yea1·-old daughter, Carolyn, and a three-year-old son, Luke.

When not teaching, Gormley enjoys a va1·iety of activities including basketball, running, boxing and playing the piano.

Jennifer Swistak is a third-year day student at Duquesne University School of Law and serves as Campus Editor ofJuris. I

Faculty

Property, environmental and art law interest Spyke By Jennifer Swistak

A fter teaching as a visiting professor at Duquesne University School of Law for the 1993-94 school year,

Professor Nancy Perkins Spyke this year joined the faculty as a tenure-track professor.

Previously, Spyke taught at Nova University Shepard Broad Law Center in Fort Laude1·dale, Fla . as professor of legal writing and as an adjunct professor. Her courses included Legal Research and Writing, Florida Constitutional Law and Law and the Visual Arts.

After graduating Magna Cum Laude from Mount Holyoke College with a Bachelor of Arts in Music, Spyke pu1·sued a career in advertising. Unsatisfied with the limited upward mobility available in the advertising industry, Spyke decided to attend law school.

Nova University Law Center appened the most logical and convenient choice due to its positive reputation and its location in Fort Laude1·dale, where Spyke then resided.

While attending law school , Spyke's activities included a position as Associate Articles Editor of Nova Law Review, competing in the Kaufman National Moot Court Competition and achieving semi­finalist status in the Freshman Moot Com·t Competition.

Graduating second in a class of 216, Spyke joined the firm of English, McCaughan & O'B,·yan in Florida. Having enjoyed property class in law school, she concentrated her practice in estate planning and probate.

Her interest in property law then led Spyke to an associate position in the area of eminent domain with the law firm of BriDgham, Moore, Gaylord, Wilson, Ulmer, Schuster & Sachs, also in Florida.

Spyke's love of law school and the academic atmosphere eventually led her to a teaching position at Nova, where she taught for four years . Although few opportunities exist for ent1·ance into the field of legal education , Nova, a very progressive law school with a larger percentage of female faculty, provided Spyke with a very comfo1·table backdrop to acclimate herself into legal education environment.

Professor Spyke 's desire to move into a tenure track program guided her to Duquesne. Last year, she taught Torts to first year students, an opportunity she found to be enjoyable and one of the best teaching experiences she encountered.

C urrently, in addition to Art and the Law and Legal Writing, Spyke teaches Federal and International

Legal Environment. Working in the area of eminent domain , Spyke was exposed to environmental issues, and she developed an interest in the international aspects of the legal environment.

She is currently involved with the joint degree program Duquesne offers in obtaining a Juris Doctor and Master of Science in Environmental Science and Management , and she hopes to teach a course in State and Local Environmental Law in the future.

Spyke resides in Highland Park with her husband, Tom, who works for Guttman Oil Co., and her two sons, 11-year-old Harrison and eight-year-old Grant. 1-la rrison and Grant, native Floridians, had the chance to see their first snowfall last winte1-.

Other than the law, Spyke's interests include the theater and the arts, and she enjoys the deep cultu1·al tradition of Pittsburgh.

For the present time, Spyke is content to teach, although she would like more opportunities to research and to publish and get involved with arts organizations. Although she does not see a return to advertising in her futm·e, she might consider consulting, and sees great environmental opportunities in the international arena.

Jennifer Swistak i.s a third-year day student at Duquesne University School of Law and serves as Campus Editor of Juris.

Winter 1995 ]URJS 25

I nternatio1zal

Duquesne Law forges international ties with Irish Justice By Thomas A. Slowey

In our· world, we are no longe r members of our own communiti~s and our· own nation , because modern technology and the expansion of our business horizons have provided us with the opportunity to become "citizens of the wodd ."

To provide effective representation of clients , lawyers must have a pr·esence that transcends local and national events and develop an awareness of the legal cultures of the international community.

Duquesne Unive1·sity School of Law will expand its own presence in the international community by co-hosting a three-day conference during the summer of 1995 in Dublin , Ireland.

Entitled "Eu1·opean Union Law: Where It Is and Where It Is Going," the program is being jointly offered with the pr·estigious University College Dublin to allow American attor·neys to d evelop an understamLng of the civil, commercial and inves tment laws of the European Union. The conference will be presented June 27 to 29 , 1995, in Dublin, which was the European City of Culture in 1991.

"American attorneys are increasingly 1·epr·esenting clients who are involved in business in the member countries of the European Union," commented Professor Maur·een Lally-Green, who has heen instr·umental in the organization of the conference. Indeed, the Em·opean Union is now the largest economic trading block of nations in the world.

"\Ve are very fot·tunate to have such an outstanding partnu for this conference," added Duquesne University School of Law Dean Nicholas P. Cafardi. "The program allows us to continue to position ourselves in the international legal community and as the leading law school with an Irish presence."

Pennsylvania Supreme Court Jus tiee John P. Flaherty is likewise enthused that the School of Law is co- hosting the conferenee. " leeland is positioned both geogr·aphically and economically to play a vital r·ole in th~ European Union, and Dublin offers and ideal loca tion for such a confe1·ence," Justice Flaherty said.

Duquesne University President John E. Murray, a professor of Law and an

26 JURI Winter 1995

internationally known expert in eonteact law and the law of international sa les, will be one of the many prominen t speakers at the conference. Other well-known speakers include professo rs of Law from the University College Dublin and representatives from the European Union.

Classes at the conference will be presented in a comparative law format, seeking to acquaint Amet·ican attorneys with the basie laws and structures of the European Union, as well as pointing out fundamental similar·ities and differences of the United States legal culture .

The course content is designed to meet the requirements of th e Pennsylvania Continuing Legal Educa tion Board of the Supreme Court of Pennsylvania to provide 12 credit hours of CLE, including one hour· of ethics, for· lawye r·s licensed in Pennsylvania.

The subjects, all d ea ling with the European Union, will include: an overview of the laws and structures of the Union, comme1·cial law, employment law, competition law and policy, securities and banking laws. In addition, e thics fo1· P ennsylvania attorneys will be offered.

The School of Law will host th e conference at the J urys Hotel in center-city Dublin, within walking distance of many of the historical landmat"k s and governmental buildings of lr·eland .

Duquesne has also made anangements for optional sightseeing tours oflreland and a tour of some of the most famous golf courses carved in the Dublin countryside, such as the European Club, Royal Dublin and Portmaenock golf courses.

Tuition for the conference will he $495

The conference will be held June 27 to 29, 1995 in Dublin and will address the European Econotnic Union.

foe attorneys with five or less years of experience and $595 fo1· attorneys with mor·e than five year·s of experience. Tuition includes all lectures , in s tru c tional materials and 1·eceptions. An additional fee of $60 will be assessed for those attorneys seeking CLE ct·edits. All other expenses will be the responsibility of the individual participants.

Various transpo1·tation options from Pittsburgh, New York and Boston will be made available at a later date. Participants will want to ensure that they have a valid passpol't well in advance of the conference, beca use it often takes sevet·al weeks to have a passport issued.

Attorneys interested in the European Union Confet·ence and the Dublin experience will be asked to 1·egister by Feb. 1, 1995, by submitting their registration for·m and a non-refundabledeposi tof$150.

A brochu1·e including trav e l arrangements will be published and mailed shortly. In the meantime, inquiries may be di1·ec ted to Professor Maueeen Lally­Green, Room G-11, Duquesne University School of Law, Pittsburgh, PA 15282-0702; telephone (412) 396-5877; fax (412) 396-6294.

[n conjuuc tion with the confet·en ce, the School of Law also hosted Justice Hugh O ' Fiahe rty of the Supreme Court of Ireland, who visited Pittsburgh fr·om Sept. 27 to Oct. l. Justices O'Fiaherty and Flaherty also made a joint presentation entitled " Impressions of the Legal Systems of It-eland and the United States" at the City-County Building in Pittsburgh.

The co nference offers a unique oppol·tunity to lea1·n about the European Union and Irish cu.lture. The city of Dublin is the home to the Eighth Century Book of Kells , the General Post Office, where the 1916 rebellion occurred and the Guinness B1·ewery at St. James' Gate, the world's Jargest. The chance to explor:e Ireland and meet the people who inspired such literary greats as William Butler Yeats a nd James Joyce aUows each of us the opportunity to take a step toward becoming a "citizen of the world ."

Thomas A. Slowey is an Adjunct Professor of Law at Dnquesne Uni·versity School of Law.

School choice may be the tonic a wounded school system needs

EDUCATION

Continued from page 8

the best interests of its school children. 10

T he assumption opponents of choice make is that there will be a mass exodus to non-public schools. How­

ever, these schools can physically accom­modate only a limited numbet· of students. Further, private schools are equally con­cerned that they may be forced to deal with problems typically associated with inner­city schools.

Education t·esearch suggests that school choice fosters active participation by parents in the education process. 11 The increased investment of parental time results in increased student attendance, a decline in behavior problems and better academic pel'f01·mance.

1 what about the idea of corporate schools? In the middle-class St. Paul suburb of Eagan,

Minnesota, there is a private elementary school run as a business by the for-p1·ofit company Education Alternatives, a 1986 spin-off of the multibillion dollar corpo­ration Control Data. 12

There are ample supplies of books,

computers and other teaching materials. Students are doing quite well .. Attendance is up. There are no strikes, and those teachers who do not perform or have hid­den agendas get pink slips, just like in the private sector.

What all of this may be indicating is that there is no singular "best" kind of school for all students or teachers. We need to provide as many educational opportu­nities as we can.

Glenn E. Camus is a fourth-year evening student at Duqnesne University School of Law and serves as Articles Editor of .Juris.

Brie_fs

Legal Briefs Bernstein elected President of Law Alumni Association for 1994-95

Rohet·t Bernstein, managing pat·tner of Pittsburgh's Bet·nstein and Bernstein, P.C. has been elected pt·esident of the Duquesne U nivet·sity School of

Law Alumni Association fot· 1994-95. A 1981 gracluate of the School of Law, Berstei.n is the authm· of Bernstein'S

Dictionary of Bankruptcy Terminology, which is now in its thit·d printing. He also set·ves on the Board of Govet·nm·s of the Cornmereial Law League of

America and is a past chairman of the Bankruptey and Commercial Law Section

of the Allegheny County Bar Association.

Miller honored with American College of Trial Lawyers fellowship

Duquesne Univet·sity School of Law gt·aduate )ames R. Miller has been

honored with a fellowship from the American College of Trial Lawyet·s.

A director with the Pittsbm·gh-based fit·m Dickie, McCamey & Chilcote, Miller was inducted dUI·ing the College's Annual Meeting of Fellows in September.

At Dickie, McCamey & Chilcote, Miller specializes in trial work associated with Toxic Tm·t and Medical Malpt·actice Litigation.

The Amet·iean College of Tl'ial Lawyet·s is a national assoeiation of 4,800 FeUows in the United States and Canada. The group's purpose is to improve the standanls of tl'ial practice, the administration of justice and the ethics of the pt·ofession.

Attorneys employed by firms serving pharmaceutical companies have highest 1ncon1es

Attot·neys employed by chemical, phat·maeeutical, plasti(~, and ntbbet· product manufactm·et·s have the highest median income among corpm·ate attm·neys, aecording to a study done by Abbott, Lauget· & Associates of Crete, ll!l.

Aeconling to the study, those attot·neys t·eceive a mediam compensation of

$119,700 annually. Other high-paying corporate attorneys include those in the

fields of pett·oleum, coal and natural gas industries: $111,263; electrical and electt·onies pmduct manufactm·ers: $108,000; communication services: $107 ,600; and aet·ospaee and ain~t·aft product manufaeturet·s: $105,900.

Among the lowest paid attonteys at·e those in state and local government:

$36,204; paper pt·oduets, }Jl'inting and publishing: $60,650; and pl"imary metal industl'ies: $74,000.

Wimer 1995 }URIS 27

Ahunni Netus

Clowning around Alumna julie Strauss translated her law experience at Duquesne University into a post as Vice President and Corporate Counsel at Ringling Bros. and Barnum& Bailey Combined Shows, Inc. Strauss finds herself juggling responsibilities as a wife and mother with her role as legal adviser to the Greatest Show on Earth.

28 JURIS Winter 1995

By Amy Zamborsky

For most of us the words "The Greatest Show on Earth" conJure up mental images filled with clowns, elephants, popcorn and sawdust; and childhood memories of a magic place where the air is electric, thick with laughter and suspense.

As a child, you may have dreamed of running away to join the circus. Many of us did after a particularly thrilling visit to the big top. But then we grew up and attended law school instead.

Julie Alexa Strauss, however, apparently became confused somewhere along the way. She went to law school and then she joined the circus.

" Life's a circus" -these wot·ds have a gt·eater meaning for Strauss than for most of us who t·epeat them when life gets hectic . For Strauss, vice president and corporate counsel for Ringling Bros. and Barnum & Bailey Combined Shows Inc., life truly is a cit·cus.

S tt·auss started on her way to the Big Top in 1981 when she was graduated cum laude from Dickinson CoiJege

with a major in Political Science and a minor in Economics.

After college, Stt·auss attended the Duquesne University School of Law. An As­sociate Articles Editor fot· The Duquesne Law Review , she graduated in 1984.

Strauss attributes h er current success to het· studies and to het· early work in a law firm. Her study of Spanish has been par­ticularly invaluable working for the circus, especially in the area of immigration law.

Strauss also praised the education she received at Duquesne stating that "Duquesne deserves more credit than it gets from its students. UCC , Corpot·ations-best

1

that could have happened . Duquesne did us all well even though we didn't appreciate it."

Stt·auss believes he•· p•·evious wot·k in a law fit·m , especially her experience with a mentor within that firm, offered her a dif­ferent and more practical type of learning. Strauss ct·edits this early w01·k in a tradi­tional legal setting as helping to pt·epare her fot· corporate life and for deali ng with out­side attorneys.

Strauss charactet·ized corpo•·ate work as "challenging, hard wot·k ." There is a pet·­ception, she added, that corporate work is easier than working fot· a law firm. This is not so, she said, because most of the work is done in-house and must be cost-effective.

M anaging the caseload for the Ringling Bt·os. legal department t·equires tremendous concentra­

tion and can be as difficult as Lion taming. Much of Strauss' work focuses on substa n­tive Law, something that corpot·ations have not historically done in-house.

Intellectual property, licensing agree­ments, slip and falls, immigration and lob­bying are just a few issues that appear in the center t"ing. While the wot·k pt·oceeds at a fast pace, the attorney sees the •·esults im­mediately.

The plethora of issues created by the five simple words, "The Grea test Show on Eat·th," keep Strauss busy. The intellectual property work the circus' slogan generates keeps everyone on their toes .

Ringling Bt·others maintains a stt·ong and active enforcement effort in the intel­lectual property area. The department has made strides in the administrative enforce­ment of t·egula tions applicable to the use of its slogan.

"The slogan is the company 's most important asset," Strauss said. "Over 100 years old, the sloga n is synonymous with Ringling Bros. and Bamurn & Bailey and can be follDd on aU of om· ads."

Bt·inging immigration work within the scope of the legal department's duties is one of Steauss' many successes, and one in which she has demonstrated that thet·e "can be an expert in-house."

The circus has two traveling shows with many for·eign pedot·mers who generate a huge volume of immigeation wot·k. Additionally, Ringling Bt·os . produces ice shows fot· Walt Disney, which also provides a sizable amount of immigration work .

Strauss is pleased with the s uccess of Ringling Bt·os.' legislative ini tiatives. The

circus has successfully lobbied for changes to the immigration laws that are known col­loquially as the "Ringling Exemption."

While these immigration issues do con­sume a gt·eat deal of time, animal issues also require a lot of tracking at the state and fed­et·allegislative levels, Strauss added .

A s a wife and mothet· of two, Sti·auss' daily life is often a balancing act. Het· husband Jeff, also in the entet·­

tainment industry, w01·ks as a television pro­ducer. They have a four-year-old son , David Alexandet-, and an eight-month-old daughter, Jenna Alexandt·a.

Sometimes, juggling responsibilities can be as difficult as stuffing clowns into a Volkswagen .

"To w01·k full time and be a full -time mom is hard , but the rewat·ds at·e gTeat," she said. "It's hat·d foe a woman to have a child and get up and go to work unless you enjoy your job. But if you like what you are doing and [you] are challenged, it's good for you and the kids."

"Making it work for you is the best way to go," she said. With the recent bit·th of her daughter, Stt·auss woeked full time at home. She feels that the home office is the "wave of the futut·e ."

Stt·auss enjoys wot·king for the cit·cus and often finds het·self at the arena and sometimes even on the top of an elephant. Her perception of the circus is that it is a close-knit, family oriented unit.

She finds a cohesive, friendl y and close wodung relationship at Ringling Bros.

Stnuss cautions students that life un­det· the legal Big Top is not necessarily as dangerous as a wa] k out on the high-wire. "Prove yom·self, be dedicated and do good wot·k. After you show an allegiance to [ your employer], then yo u can expect the reciprocal. "

Stt·auss' advice for law students is to "enjoy law school because it goes so fast. " She offered that students should be "less concerned wi th grades and more with absorbing and focusing on what they aee learning."

Finally, Stt·auss believes you can suc­cessfully " blend pwfessional and pet·sonal, it's all in the appropt·iate a ttitude."

Amy Zamborsky is a fourth-year evening student at Duquesne University School of Law and is a former Editor-in-Chief of Juris.

Lije In The Circus

Introducing Class Notes!

Beginning with the next issue, juris will begin publishing the

news and other information you want your former class mates to know. Just fill out this form and tell us about

marriages, births, other academic degrees, career

advances and publications!

Name:

Year of graduation:

I'd like the alumni of Duquesne University School of Law to know:

Send this form to: JURIS School of Law Duquesne University 900 Locust St. Pittsburgh, PA 15282

Winter 1995 JURIS 29

Alun1ni N ezos

A Winning Attitude Alumnus William Costopolous translates his outlook on life into proven results in the courtroom. He recently used those tools in the high-profile impeachment proceedings of former Pennsylvania Supreme Court justice Rolf Larsen.

By GeraJd W. Yanity

While all good lawyers rely on skill, preparation and creativity at trial, winning lawyers always possess one subtle characteristic: Attitude.

Perhaps no Duquesn e Unive rsity School of Law graduate exemplifies a winning attitude better than William C. Costopoulos. Lately, his nam e has regularly appeared on the front pages as the attorney for embattled former Pennsylvania Supreme Court Justice Rolf Larsen.

On Oct. 5, Costopoulos appeared at the Duquesne University School of Law to address students . For Costopoulos , it was a sot·t of homecoming , a nd h e marveled at the drastic physical changes which have taken place on campus since his days as a student.

Costopoulos was graduated from Dickinson CoUege in Cadisle, Pa. Mter serving in the U.S. Army; he came to Duquesne as a law student in 1968 . He said that while the School of Law's location and appearance had changed, the high quality of a legal education at Duquesne had not.

Valedictorian of his cla ss and Editor­in-Chief of the Duquesne Law Review , Costopoulos was graduated in 1971. He set his sights on the hallowed ivy-covered halls of Harvard.

" I wanted to see how it compared to Duquesne ," he said .

Costopoulos earned his LLM in Criminal Justice from Harvard , but ct·edits Duquesne with nurturing his self confidence and " romantic relationship" with the law.

Costopoulos began his lega l career with the Dauphin County District Attorney's office. Since 1973, he has been in private practice and has handled a number of high-profile cases, including

30 J IUS Winter 1995

the 1980 "666" Pennsylvania Lottery fixing scandal and the Jay Smith murder case, which was made into the television mini­series " Echoes in the Darkness. "

But perhaps Costopoulos ' greatest notol'iety has come from representing Ju s tice Larsen during his t·ecent impeachment trial in the Pennsylvania Senate, the first conducted in that chamber since 18ll.

" A trial on the Senate floor is a memo1·able event," Costopoulos told assembled students, "because it is conducted without rules, without authorities and without a burden of p1·oof."

Costopoulos' involvement in the Larsen

matter dates back to a phone call on a March evening in 1993. "I was working out at th e gym-which is stressful enough-when I was told that a P ennsylvania Supreme Court Justice was on the phone for me ," he t·ecalled.

At firs t, Costopoulos believed that the phone call at the gym was just a clever joke. But a few hours later, Costopoulos phoned the justice and discovered that this was no joke but one of the greatest opportunities of his career.

Costopoulos believes it was his winning attitude that most impressed Larsen.

Costopoulos, who lacked political connections with Harrisburg legislators seemed to be the perfect choice. "I only knew one person in the Legislature-the cook!" he quipped.

The first challenge for Costopoulos in the Larsen case was the criminal trial held in Allegheny County Court of Common Pleas, where the justice was chaeged with 28 criminal counts.

"I always think I can win, but once the media enters, the rules change," he explained. Costopoulos indicated that in high profile cases in which the media plays a significant role, the stakes go up.

He pointed to the prosecution's request for a 23-month jail sentence as an example of "the media clamoring in front of the cameras. These weren't criminal charges, they were political, and without the media, this would have been ... an [Accelerated Rehabilitative Disposition] case." The Senate was under tremendous political pressure to convict Larsen of something, whether or not the evidence supported such a verdict. Larsen was acquitted on six of seven articles of impeachment.

"The Senate made a good faith effort to render a fair verdict," Costopoulos said. "They could not find him guilty of misbehavior in office. They should not have found him guilty of Count 2 [improperly contacting a Pittsburgh attorney regarding a case], but this was a political trial."

Costopoulos said that he believes the public wanted to have Larsen removed despite the lack of evidence to support a conviction.

When asked why Larsen decided not to end the rna tter by resigning from office, Costopoulos said that the former justice believed in his innocence. Larsen wanted no part of any political "deal" which would allow him to leave office in exchange for dropping the charges.

Costopoulos pointed to Larsen's emotional near-breakdown on the witness stand during the Senate trial when the jurist was asked about his four-year-old granddaughter. Larsen's reaction, Costopoulos said, was an example of his resolute deter·mination to cleat· his name for the benefit of his family.

Although convinced of Larsen's

Costopoulos said the Senate made a good faith effort to render a fair verdict in the Larsen

impeachn1ent case even under tremendous political pressure to convict Larsen of something.

D e.fense 0./A Justice

innocence, Costopoulos told the crowd of future lawyers that they will not always have the luxury of knowing their clients are innocent. Even in the face of such adversity, a lawyet· still must have a winning attitude.

"When you say 'yes' [to a client who confides his guilt], you still have to give it your all. You can't sell short," he said. "FoL" eveey waking hour you spend on the job, you will spend many more with yourself, and that's who you've got to live with."

Gerald W Yanity is a third-year day student at Duquesne University School of Law and serves as Managing Editor <:?[Juris.

Winrerl995 ]URIS :$ 1

.. . Continued

Death Penalty Project ends

PROJECT

Continued from page 13

This action proved prescient. In the five months before the 1990 November election, Gov. Casey signed seven execution warrants.

This was no doubt purely cynical politics. He never signed that many before, and has not signed that many since. In any event, the Project has been involved in providing assistance to the volunteer attorneys in all warrant cases.

In recent years, monitoring death row has itself become mot·e or less a full-time commitment of the Pt·oject. Pam needed to know what recent case law held and how it affected other cases. She also prepared fot·ms for students to go back through old cases in order to identify potential issues and to analyze the case itself.

These forms proved invaluable later, with the often pressure-filled deadlines of warrant litigation. With the coming of the Resource Center, the monitoring project is closing as well.

While the Allegheny Death Penalty Pt"Oject was operating, Dean Sciullo and othet· Professot·s would frequently suggest that the Project become a fot·mal school clinic. That way students would receive academic credit and I could count the holll·s I spent as part of my teaching load. A few years ago, Temple University School of Law did that very thing.

I always resisted these proposals. In my mind, the Project rept·esented service, not study-practice, not preparation . I did not wish the formal leam.ing of students to be a consideration. I wanted senice to the client and to the profession to be the only thing that mattet·ed.

The students always undet·stood this. Their efforts tht·ough the years, whethet· large or small, were always a matter of giving of themselves.

They wet·e always helping the legal profession live up to its own ideals. They nevet· wanted, nor received, anything in return.

As the Pt·oject closes, I will take the memory of theit· set·vice with me .

Bruce Ledewitz is a Professor of Law at Duquesne University School of Law.

32 jURJS Winter 1995

Advances in Career Services Office make job searches easier even as the market is tight

CAREER

Continued from page 15

A Lexis and Westlaw computer have been installed to access diffet·ent databases fol" job opportunities. Cat·eet· Services has scheduled a rept·esentative fl"om each company to conduct a monthly training session for interested students. The CSO also has acquired a fax machine to allow a quicker turn-at·ound when students l"espond to employers .

In addition , CSO will hold symposiums on the topics of a well-rounded law student , how to run fot· political office, how to use the offices Downtown, and how to set up your own law office.

The Career Services Office should be used as a tool to empower the student to find a job. Plenty of t·esume, covet· lettet· and thank-you letter writing books are available, as weU as the advice of Suzanne McClure, the Assistant Director of Career Services, on writing styles .

Further, the updated job search manual gives a detailed outline of the resout·ces available in Cat·eer Services. Other seminars that will be offered tht·ough the Career Services Office are lectures on resume writing and interviewing.

A law degree is versatile. A graduating student needs to realize that practicing law is only one possibility available to lawyers. Law school has prepared its graduates for careers in areas other than litigation.

The law school expet·ience has enhanced a graduate's knowledge and has prepared him or her for positions that require a highet· degree of education. A Juris Doctor can only expand the opportunities afforded to a gt·aduate regardless of whethet· the student decides to practice law.

Erin Larabee is a third-year day student at Dnquesne University School of Law.

A student also teaches

TEACHING

Continued from page 9

This becomes very annoying for my family because they miss half the show when I jump up and exclaim that there is more to the tet-m quasi contract than the sole fact that it is not a real contract. I continue on, giving them a detailed explication of the word or phrase.

Lately, some of my freshman students have refused to use a few terms correctly as well. They tum in papers with spelling errors and stare at me blankly when I tell them that "alot" is not a word. And, of cout·se, some use the nonexisting word again and yet again on subsequent papers.

At least I feel that I have leamed from them. They have taught me not to make the same mistakes on my papers. They have taught me to come prepared and to pay attention to my professors in class . More importantly, they have taught me that professors do not make any money from their jobs and therefore must be in it fot· the shear enjoyment of teaching.

They really are great kids. They just live in outet· space . They have not become accustomed to their new atmosphet·e. The upperclassmen in law school keep telling us fit·st-yeat· students that we will not know what is going on until Thanksgiving.

I tell my freshmen the same thing. Once they become acclimated with the campus, their professot·s and college life in genet·al, they will be able to bt·eathe easier and truly feel comfortable in their new surroundings.

It appeat·s now, as I look back at my fit·st-year law experience so fat·, that I never really moved from outer space. I, like my ft·eshman students, feel as if I am floating in a stt·ange new world, a world that has opened new ideas, thoughts and yes, questions.

I have become engulfed in an atmosphet·e that dedication and hard wot·k will help me compt·ehend. It is a wodd that I will one day be able to live in without the protection of my legal dictionat·y. I look forward to the day that this unfamiliar world of jurisdictional questions, torts and consideration will not be so bizarre, so cliffet·ent and so, well, foreign to me.

Mary R. Castelli is a first-year evening student at Duquesne University School of Law.

Hun1or

From the Back Row ... By R. Judicata

Well, it's that time of year again. While some soon-to-depart third year day and fourth year evening students have received many generous job offers and leave them lying around like so much leftover Halloween candy, some of us less fortunate neophyte lawyers are hoping that Aunt Patty comes up with her usual crisp ten dollar bill at Christmas. How can you tell the difference between the "haves" and the "have nots?" We here at ]uris have put together the following guide to help you:

Those who got jobs ...

l. Parents say, "You've made us very proud, son."

2. Take two week trip to the beach.

3. Enjoy Penguins games from a luxury box.

4. Lease a new Acura .

5. Are seen on Grant Street talking on a cellular phone.

6. Make the news.

7. "Your honor, I intend to prove that my client is innocent ."

8. Wear a Brooks Brothers suit to work every day.

9. Relatives say, " Now we have a lawyer in the family."

10. Have a few spare minutes to read ]uris.

Those who did not get jobs ...

l. Parents say, "Clean up your damn room. "

2. Take a trip to the beach and become a lifeguard .

3. Drive the Zamboni.

4. Borrow Grandma 's ' 73 Dart.

5. Are seen on Grant Street talking to the Caligiuri statue.

6. Deliver the news.

7. "Your honor, we assure you that your table will be ready shortly."

8. Wear a paper hat and name tag.

9. Relatives say, " No. For the last time I don 't want any insurance.

10. Have hours and hours to read ]uris.

Winter 1995 ]URIS 33

POSTAGE REQUIRED FOR THIS MAILING MATTER

Non-Profit Org. U.S. Postage

PAID Pittsbm·gh, PA Permit No. 390