Winter 2011

The Duquesne law school newsmagazine

Common Law: ysis An Anal of Media Misconceptions Table of Contents

Letter from the Editor...... 1

From the Halls...... 2

Meet Robin Connors!...... 4 JURIS STAFF An Interview with Adrian Roe, Adjunct Professor...... 5 2011-2012

Law Clinics: A Hands-On Approach to Editor-in-Chief: Staff Writers: Shaping Legal Education...... 6 Kiran K. Patel Ashley Bozewski Marissa Cocciolone Law in the Media: Myth or Reality?...... 8 Executive EditorS: Jennifer Dickquist Jeffrey Fromknecht Dana M. Giallonardo Taking the CSI out of the Medical Examiner...... 9 Brandon R. Keller Edward Hirshberg Jesse Krueger The CSI Effect...... 11 Managing Tim Miller Associate Editor: Alicia Nealon Reality Check: DNA Exonerations...... 12 Gabriela Steier John Price

Web Editor: Blog Writers: The Nancy Grace Effect: How the Media Molds Daniel J. McGrane Andrea Capasso Public Perception of the Criminal Justice System....13 Gabrielle Carbonara Associate Editors: Eric Donato Female TV Lawyers: Ladies or Tramps?...... 14 Jessel August Costa, III Elizabeth Hall Bridget Daley Jeffrey Kranking Life of a Sports Lawyer...... 16 Michael McGraw Jacob Levine Nathan Ward Mary O'Rourke A Career in Public Interest Law: A Reaction to the John Sembrat Financial Meltdown or Charitable Motivation?...... 18 Jenna Smith Emily Shaffer Modern Technology: Protecting Privacy on the Net...... 20 Faculty advisors: Assistant Dean Ella Kwisnek What Kind of Establishment Clause is Professor Tara L. Willke Appropriate for Religion in an Age of Science?...... 21

Juris_Blog...... 25 Letter from the Editor

New developments in were spawned from this reflection theory. The “CSI” effect, knowledge, technology, and for example, has been labeled a 13th juror, informing the culture have brought about layperson’s expectations and beliefs about the efficacy of the changes in many aspects particular form of evidence and the conduct of trials. of our society, including We explored a variety of other legal issues affected by the laws and the legal system. media, mainly how women in law are perceived and how the Our vast and complex legal media contributes to that perception; privacy on the Internet system permeates nearly and the law’s constant struggle to keep up; and the Medical every aspect of American Examiner’s office and clearing up myths created by media. life; it is only natural to Building on the public theme, we explored public interest wonder about Americans’ law and its increasing popularity among law school graduates in perception of our modern addition to the importance of clinical work in law schools and legal system. its benefit to the public. Law school graduates are increasingly Kiran K. Patel This year’s theme aware of the importance of public interest law and not just as for Juris, the modern a result of the economic downturn, but genuine desire to help American’s perception of the legal system, grew organically people in need by providing them access to justice. Working in among the public, exposing the people’s perceptions about the public sector can be a valuable stepping stone to other career the legal system and discussing how law can better meet opportunities, much like clinical experiences in law school. As our nation’s needs. Our arrival at this theme should not be the world and the legal profession change, law schools must surprising, given the public uproar over financial, political, and prepare the next generation to fulfill the roles as our advocates socioeconomic institutions, intensified by the recent Occupy and leaders. Clinical work allows a student to gain a strong Wall Street movement. foundation in legal theory, learn the skills necessary for success The modern American legal system has been molded in the changing legal profession, and gain awareness of their through the collection of a vast quantity of verbiage about ethical and public service responsibilities. the history and content of America, and it is often difficult These points represent only a few of the questions explored to understand how our legal system became such a jumbled in this issue of Juris. As the media and other external factors entity. With 50 separate state governments and court hierarchies continue to have an influence on the law, the public and their beneath the federal level, the American legal system is more perceptions of the justice system will have a direct impact on complex than that of any other nation, and our country has our future. It is important to always explore the underlying legal more lawyers than any other by far. It is a monument to human issues and perspectives presented by these influences. By doing ingenuity and social cooperation; however, the general public so, we can continue to grow both in our legal system and our is not impressed with the system. In fact, most people consider nation. it to be appallingly excessive. Almost since the advent of television, legal scholars and Kiran K. Patel is the Editor-in-Chief of JURIS. He is a third-year law practitioners alike have contemplated the impact of law- student at Duquesne University School of Law. He is also the Executive oriented entertainment programming. Research suggests that Research Editor of the Duquesne Business Law Journal and a a majority of people in the United States form much of their member of the American Bar Association, American Intellectual impressions and knowledge of our legal system based on what Property Law Association, Pennsylvania Bar Association, Allegheny they see and hear in the media. As cultural products, television County Bar Association and the Bucks County Bar Association. His programs and images are conceived as reflections of society. academic concentration is in international intellectual property law. Consequently, during the last decade, scholars have begun He works at the Civil and Family Justice Law Clinic in the Allegheny investigating the impact of pop cultural representations of County Court of Common Pleas Pro Se Motions Program. Kiran received his Bachelor of Science degree with honors from Drexel law, such as dramatic and reality shows, on the public. Legal University in Philadelphia majoring in biology and sociology, in May fictions, such as the “CSI” effect and the Nancy Grace effect, 2008. He can be reached at [email protected].

WINTER 2011 | juris magazine | 1 From The Halls By John Price, Staff Writer

This year is proving to be full of promise for the students and alumni of Duquesne University School of Law. It is amazing that since the first classes in 1911, Duquesne University School of Law continues to embody the long-standing traditions of excellence and service to the community through continued accomplishments and events every year.

Showcasing our law school’s proud and distinguished alumni, Supreme Court Justice Antonin Scalia spoke to an excited crowd the Dedication of the Judges Wall on August 18 reminds us that at Duquesne in September 2011 as part of the Law School’s over its 100-year history, Duquesne Law School alumni have Centennial weekend. The weekend was capped off by the Gala proudly continued Duquesne’s emphasis on “justice and service Centennial dinner and reception, where many alumni and to others.” This event was held to dedicate a permanent display supporters of the Law School filled the Duquesne Ballroom to in the law school in honor of those 136 Duquesne Law alumni celebrate the Law School’s 100th birthday. who have served as judges on various state and federal courts throughout the country. During the dedication, the Hon. Ronald D. Castille, chief justice of the Pennsylvania Supreme Court, and the Hon. Michael E. McCarthy, Allegheny County Court of Common Pleas judge, made special remarks lauding the Law School.

Row 1: Stephanie Jones, Chris Bradley, Elizabeth Brokaw, Justice Antonin Scalia, Joseph Pometto, Bridget Daley, Brendan McKenna Row 2: Lara Rausch, Jonathan Curtis, Ryan Sayers, Ben Hantz, Ed Pollock, Andrew Stiffler, Tucker Bair, John Bonaccorsi, Amy Tardiff Row 3: Cassidy Miller, Devlin Fisher, Giambattista Patti, Peter Biscontini, John Price, Jim Dilmore, Krista Barron, Carolyn Slayton, Cathy Cartieri Mehl

From left to right: Justice Ronald D. Castille, Dean Ken This year has proven rewarding not only for our alumni, but Gormley, University President Charles J. Dougherty, Ph.D., also for our current students in providing assistance and service Hon. Michael E. McCarthy, and wall sponsor Paul J. Gitnik, Esq. to others. Jonathan Steele, a third-year day student, was recently awarded first place at the American Bar Association Section of Litigation “Good Works Law Student” competition. The competition focuses on increasing access to justice. Jonathan envisioned an interactive website in which parents, teachers, and others could receive answers directly from special education experts. Being passionate about the concerns of special-needs children, Jonathan wanted a forum where these groups could access answers to both complex and simple legal questions.

2 | juris magazine | winter 2011 Jonathan entered this competition with the hopes about the website in front of 200 members of the American of receiving funds to bring his project to fruition. After Bar Association’s Section of Litigation. Following an interview registering, Jonathan was informed that he was selected as a in California, the competition committee selected Jonathan finalist for the grand prize along with two other teams, one as the grand prize winner, creating the opportunity for him from Temple University Beasley School of Law and the other to expand his website and pursue his career focus in special from Fordham University School of Law. Jonathan traveled to education. Further information regarding his website, The Dana Point, Calif., where he gave a two-minute presentation Student Advocate, can be found at www.thestudentadvocate.com.

In October, the Student Bar Association hosted the 13th Annual Katie Westbrook Race Ipsa Loquitur 5k Walk & Run. The annual race is dedicated to the memory of Katie Westbrook, who, at the age of 13, was diagnosed with osteosarcoma, a rare form of bone cancer. Even from a very young age, Katie dreamed of one day becoming a lawyer. After her diagnosis, she contacted faculty members at Duquesne with the hopes of making her dream a reality. On June 3, 2001, just hours before Katie was to receive an honorary degree, she lost her battle with cancer at the age of 15. Katie touched the hearts of all privileged enough proceeds are donated to the SBA Centennial Endowed Fund, to meet her and showed how truly brave a young girl could be. with the goal of providing awards for law students who Devlin Fisher, president of the Student Bar Association, demonstrate the same “courage, charisma, and compassion” noted that the Katie Westbrook race is “one of the most as Katie for the law profession. More information is important events” the Student Bar Association is involved available through the Student Bar Association’s web page, in with respect to “directly benefiting law students.” All www.duq.edu/sba.

“You might not know this now, but you are making Pittsburgh Mark Troyan) and “Team G&K” (Gabriela Steier and Kiran history!” was the introductory welcome by Audrey J. Murrell, K. Patel) had 15 minutes to create a PowerPoint presentation director of the David Berg Center for Ethics and Leadership and five minutes to present their take on ethical violations by at the University of Pittsburgh School of Business and host the Lennar Corporation to an audience of professionals in the of “The Great Case Competition.” Modeled after the popular finance industry. TV series “The Amazing Race,” the competition was open to Kiran K. Patel told Juris that “Professor Ron Ricci law, business and public policy students from seven schools. encouraged us to participate,” and his team-partner Gabriela Contestants answered complex ethical fact patterns and raced Steier continued, “and we wanted to make him proud.” Ricci, to different locations between the University of Pittsburgh’s law professor of law at the Duquesne University School of Law, was and business schools to submit their answers. Four of our third- happy to see four of his students as finalists. The Dukes won the year students beat 56 other contestants to the final challenge. second prize ($1,500) and Team G&K the third prize ($500). In the final round, Team “The Dukes” (Joseph D’Amico and Bravo!

John M. Price is a Staff Writer for JURIS. He is currently the Vice- President of the Duquesne University School of Law Student Bar Association and will graduate in June 2013. Prior to law school, John attended The Pennsylvania State University, Smeal College of Business, where he earned a Bachelor of Science degree in Marketing. He can be reached at [email protected].

Gabriela Steier is the Managing Associate Editor for JURIS, research assistant for Professor Jane C. Moriarty and author of several publications. Her academic concentration lies in food and health care law combined with international intellectual property and commercial law. She earned her Bachelor of Arts at Tufts University in Boston in 2007, with a major in English and a minor in studio art, From left: The Great Case Competition, October 13, 2011, and she will graduate from Duquesne University School of Law in winners Mark Troyan (3L), Joseph D’Amico (3L), Kiran K. Patel June of 2012. She can be reached at [email protected]. (3L) and Gabriela Steier (3L). Picture by Robin Bolea (3L)

winter 2011 | juris magazine | 3 From The Halls

Meet Robin Connors! By Dana Giallonardo, Staff Writer

n Coordinator of Student Organizations for the Law School n Born and raised in Pittsburgh n Earned her Business Communications degree from Duquesne University n Currently working toward her Masters in Liberal Studies at Duquesne

Robin Connors, new Student Organizations Coordinator, “My office is always open,” Connors said. “I would love is by no means new to Duquesne University. Prior to working to meet first-year students and let them know about the at the Law School, Connors worked in the Student Accounts organizations that are available. I know we could match them Office for over three years. with something.” “I think Duquesne is in my blood. I love the university,” Connors said. “My father-in-law was here during the war Dana Giallonardo is a Staff Writer for JURIS. She earned her years. He is the one who inspired me to come to Duquesne. undergraduate degree from Lehigh University in 2010, where she There is something special here. You can feel it when you walk majored in Journalism, minored in Communications and on campus.” Creative Writing, and was an Assistant Editor on the Brown and Many students know Connors’ name because of the White student newspaper. Dana will graduate from Duquesne e-mail blasts she sends throughout the week, but few know University School of Law in June of 2013. She can be reached that Connors is essentially the point-person for every student at [email protected]. club or activity at the Law School. She is a liaison between the organizations, students and faculty and helps students in their respective organizations plan and execute events. As for Connors’ future goals for student organizations at the Law School, she said, “I’d really like to see the student organizations get their day in the spotlight that they deserve, because they do amazing things. “If any student has an idea for a new organization, they can certainly come to me and we can get something going if they want to start an organization that we don’t currently have,” she said. For now, with a cheery disposition and genuine interest in helping students in their respective organizations, she urges Robin Connors looks on as Cassidy MIller (4E), President of the students to get more involved. Animal Law Society, receives a donation to support a no-kill animal shelter from Jeff Fromknecht (4E). Fromknecht and his cousin, Adam Causgrove, hosted a tailgate party this summer to raise funds for local charities.

4 | juris magazine | winter 2011 An Interview with: Adrian Roe, Adjunct Professor

By Tim Miller, Staff Writer

The Duquesne University School of Law is home to a vast They pose a score of issues under the courts’ rules, and under array of talented adjunct professors. These professors continue the civil rights laws and federal Constitution. I tell the students practicing throughout the Pittsburgh area. Yet they also take on the first day of the class that a civil rights case is basically time from their busy schedules to teach a variety of courses like any other case and that if they can learn to litigate a civil at the law school. One of those professors, Adrian Roe, began rights case they will have taken an important step in learning working as an adjunct in 2009. He attended Johns Hopkins to litigate any other type of case. University and Boston University School of Law. Roe lives in a Two students in the clinic have argued cases before Pittsburgh suburb with his wife (who also is an attorney) and three-judge panels of the U.S. Court of Appeals for the Third their three children. Circuit. Four other students have argued dispositive motions in federal district court. Last year most of the students in the How did you get involved in teaching at Duquesne clinic took or defended at least one deposition. All of the University School of Law? students have learned how to prepare and file a complex filing When I first moved to Pittsburgh, in 1991, I worked as an in federal court. I emphasize that the rules are the roadmap associate at Mansmann Cindrich & Titus. A number of years for a quality court filing and encourage the students to adhere later, I had handled several free speech cases, and Professor strictly to the rules while trying to develop creative arguments. Gormley invited me to tell some “war stories” during a session of his First Amendment course. I spoke during a few classes What do you like most about teaching at the taught by Dean Gormley and then had the opportunity to law school? co-teach the Civil Rights Litigation Clinic with Acting Director Working with the enthusiastic students. The vast majority Tracey McCants Lewis. of the students are totally “into” their cases. The enthusiasm for the cases cuts across ideological lines such that you will Can you give some details about the class you teach find liberal and conservative students working together to and why you teach it? advocate for a prisoner’s rights. Both the U.S Court of Appeals for the Third Circuit and the U.S. District Court for the Western District of What is your day job? Pennsylvania have student practice rules. The courts allow I am in private practice in Pittsburgh. My firm, Law Office students (who satisfy certain criteria and with the written of Adrian N. Roe P.C., is located in the Gulf Tower across consent of the client) to prepare and file papers, and actually the street from the federal courthouse. I typically represent appear in federal court, under the supervision of a licensed plaintiffs in cases pending in federal court. Substantive areas and duly admitted attorney. (Duquesne is one of the few of practice include class actions and, of course, civil rights. law schools in the commonwealth that regularly receives appointments from the Third Circuit.) Tim Miller is a fourth-year student at the Duquesne University The clinic gives the students firsthand experience in School of Law and a Staff Writer for JURIS. He is a graduate of handling cases in federal court. The cases consist almost American University. He can be reached at [email protected]. exclusively of prisoner civil rights or habeas corpus cases.

winter 2011 | juris magazine | 5 Law Clinics: A Hands-On Approach to Shaping Legal Education By Marissa Cocciolone, Staff Writer

Expectations for the first-year associate have changed. In you learn more about the courses if you see the connection with today’s job market, newly minted lawyers need to hit the ground reality. Employers are going to want to see people who can assist running, leaving new attorneys faced with a greater amount them right away. The more a new associate is able to take some of responsibility than in previous eras. Because of this shift in of the actual burden off of them, by being able to do some of the expectations, an increasing number of law students participate work, the more attractive that new associate is. And that has a in clinics to help them prepare for their first year as hired direct relationship with the experience gained by a clinical legal associates. Over the past few decades, clinics in law schools education.” have transformed not only the caliber of students, but also the Employers are not the only catalyst for the promotion of expectations of employers, all while maintaining the overarching clinics. The American Bar Association is currently considering goal: a balance of granting students experience while serving the new standards that require all law schools to place greater public. emphasis on skills training. The ABA, like many employers, Clinical legal education has been a topic of interest among espouses the idea that students should graduate prepared to legal educators since 1910, but it wasn’t until the latter part of do practical things, and the ABA sees a deficit in that area. In the 20th century that law clinics solidified their foothold in the response to this expected change, law schools across the nation academic world.1 From the 1960s to the 1990s, the combination have placed great emphasis on the development of their clinical of external funding, development of clinical teaching legal programs, adding dozens of options. methodology and demands for social relevance in law schools Duquesne University’s Law Clinic has been in place for over gave rise to an upswing of clinical education programs in law two decades and, as the dean puts it, is “leading the pack” in schools across the country.2 the field of clinical legal experience. The mission of the clinic Now, most firms look for experiential education on is to serve the community by providing good counsel, to train candidates’ resumes. Today’s hiring lawyers have an entirely students in the actual practice of law and to promote the rewards different view on the meaning of experiential learning, partially of public service. because they are not far removed from academia. They Tracey McCants Lewis, acting director of the Law Clinic at understand the new methodology of developed clinics, and can Duquesne, carries out this mission by challenging students to appreciate how these institutions hone skills while providing a face real legal and social issues posed by impoverished clients. solid foundation of relevant knowledge. “Students who take a clinic course graduate having practical With experience in the public and private sectors, Duquesne experience in a wide variety of legal subject matters,” said University School of Law Dean Ken Gormley understands what Professor McCants Lewis. For example, students enrolled in the current employers look for in potential new associates: “I think Bill of Rights Clinic seize the opportunity to visit federal court;

Photo: 2011 Summer Public Interest Fellowship Program (SPIF) Fellows and Public Interest Law Association (PILA) Award recipients. Sponsored by the Law Clinic and PILA, recipients receive financial support for spending their summers working in the public interest. Row 1: Robert Hartley, Lauren Catalano, Estie Lynn Carlson, Ian Beitler, Rory Driscole, Joshua Gallo, Daniel Gleixner, Matthew Koning Row 2: Dominique Sciullo, Linda Postol, Amanda Ponzurick, Jenna Miller, Elsbeth Koefer

6 | juris magazine | winter 2011 not to observe, but to litigate. Over the past two years, students have presented oral argument before the U.S. District Court for the Western District of Pennsylvania and the U.S. Third Circuit Court of Appeals in their representation of federal prisoners who filed pro se federal civil rights claims. Students who take advantage of the clinic have been able to land jobs as a result of their newfound practical skills. “A few years ago, one of our students secured a summer position with a law firm’s E-Discovery Group, based upon the experience she gained in the E-Discovery Simulation course offered in the Clinic,” Professor McCants Lewis stated. More recently, two students who had enrolled in the Unemployment Compensation Clinic were hired to defend unemployment compensation claims for a company as a result of their clinical experience. One of the most significant moments for clinic students is when they have the opportunity to develop a professional “When students have an relationship with a real client. As Professor McCants Lewis points out, “When students have an opportunity to sit across the table opportunity to sit across the and look into the eyes of a client and hear their story firsthand, it makes a difference. There is empathy and understanding that table and look into the eyes of their actions will have a direct impact on the life of that client.” This clinical work pays off not only for law students, but a client and hear their story for the Greater Pittsburgh community as a whole. “The students in our clinic help countless citizens who do not typically have firsthand, it makes a difference.” access to legal services,” Professor McCants Lewis stated. For instance, students in the Unemployment Compensation Clinic – Tracy McCants Lewis assist people on a daily basis who are struggling financially after being terminated from their employment. The number of clients served by this clinic is remarkable. “Based upon the current economic climate,” Professor McCants Lewis noted, “the students in the Unemployment Compensation Clinic are on track to serve “The clinics are a perfect way to begin to get students used more than 90 clients this year.” to the idea that serving others should be a part of what you do To ensure that students continue to make an impact as a Duquesne Law graduate,” Dean Gormley explained. “Even through clinical education, the Law School approved measures if it doesn’t end up being your full-time work for the rest of to further encourage students to sign up. In the past, students your career, it should be a piece of your identity: serving others were limited by the number of “non-traditional” credits they with one’s legal talents, others who are less fortunate, and who were permitted to take. Dean Gormley noted that by recently otherwise couldn’t afford to gain access to legal services.” approving an increased allowance of those non-traditional Excited for the clinic’s future, the dean concluded by saying, credits, the law school has enabled students to do more clinical “The more we enable students to get hands-on experience while work. simultaneously learning the law and helping others, whether it be clients or the government as leaders in society, then we’re doing what we as lawyers are meant to do.”

Marissa Cocciolone is a Staff Writer for JURIS. She is also a representative for BarBri and a law clerk for Rewis & Yoder, P.C. Marissa earned her undergraduate degree at Washington & Jefferson College in 2009, where she majored in English and Professional Writing, and will graduate from Duquesne University School of Law in June of 2012. She can be reached at [email protected].

1. Margaret Martin Barry, Jon C. Dubin and Peter A. Joy Clinical Education for This Millennium: The Third Wave, 7 Clinical L. Rev. 1, 12 (2000). 2. Id. at 17.

Bill of Rights, Civil Rights Litigation Clinic From left to right: Andrew Nagurney, Joseph Ferguson, Ian Beitler, Jordan Hettrich, Brandon Keller

winter 2011 | juris magazine | 7 THE FOLLOWING ARTICLES ARE RATED M FOR MISCONCEPTION:

Welcome to the JURIS Channel, where the legal system is riveting and sexy; where the bad guys are thrown in the slammer and the good guys are freed by a George Clooney-esque lawyer with a breathtaking closing statement and a jaw line that could slice bread. Our medical examiners have badges, handguns, and 6-inch heels. Our newscasters play judge, jury, and executioner. Do our public trials and legal pundits warp our perception of legal reality? Do our crime scene investigator shows infect jury pools by raising our expectations of crime scene evidence? Honestly, we don’t care. The viewers eat this stuff up, regardless of its truth. But for those of you who are curious, JURIS Channel presents the following articles on how the media affects your understanding of the legal system.

8 | juris magazine | winter 2011

Taking the CSI out of the Medical Examiner By Jennifer Dickquist, Staff Writer

Cue “Who Are You” by The Who. We all have seen the TV show “CSI: Crime Scene Investigation” along with its various spinoffs. In case you haven’t, these shows give the viewer a look at the world of crime scene investigations from the eyes of the police, the medical examiners, and lab technicians. Still, the question remains: How accurate are the depictions in these types of shows? I sat down with Dr. Karl Williams, the medical examiner in Allegheny County, to break down what actually happens in this medical examiner's office. While shows like “CSI” and “Law & Order” are entertaining, they are not always accurate.

Dr. Karl Williams, M.D., Allegheny County Medical Examiner Myth #1: Money is no object.

False. When watching shows like “CSI” and “Law & Order,” the ME’s offices seem to have unlimited funds. The technology is bigger and better, the salaries are larger, and hundreds of tests can be run on a single drop of blood. However, this is not the case. Most medical examiner offices are controlled and funded by the government. Funds are not unlimited. In fact, many of these offices are underfunded. Dr. Williams said that one of the biggest concerns in his office is the funding. The lack of funding makes it difficult to buy the expensive equipment that is necessary to perform some of the vital tests in an investigation. According to Department of Justice statistics, the mean operating budget for a county medical examiner officer was $715,000 in 2004. Since money is an object, unlimited tests cannot be run, huge staffs cannot be put together, and nobody is getting rich quick off the work that they do.

winter 2011 | juris magazine | 9 Myth #2: Technology is state of the art.

True. Dr. Williams gave me a tour of the facilities and reported that the Allegheny County Medical Examiner’s Office has the most up to date technology. While this may not be true in more rural offices, the The Firearm Reference Library Collection at the Allegheny Allegheny County lab has stayed up on the newest County Medical Examiner’s Office. There are over 400 guns technologies and tests that can be run. The lab has in the collection, which are used for ballistic testing. the ability to isolate DNA out of a mixed sample, which is a relatively young technology. Allegheny basement of the SVU office. However, this is not the County maintains the newest equipment in order to case! Dr. Williams explained that the medical examiner’s perform these new, up-and-coming tests. The office office is completely independent of the police has electronic microscopes with computers attached, department and District Attorney’s office. The Allegheny the DNA machine and a toxicology machine. While the County Medical Examiner is located in the Strip District, Allegheny County lab can perform the same tasks as a which is a number of blocks from the District Attorney “CSI” TV lab, “CSI” does show some technology that and the courthouse. It is also not crawling with officers does not exist. “CSI” shows the ability to inject samples as typically portrayed on TV. Dr. Williams said that the directly into the machines in order to perform various ME’s office attempts to maintain an apolitical stance. tests. This, however, is not how it works. DNA and blood Funding does come from the federal government, which samples have to be placed into tubes or onto slides in can make maintaining an apolitical stance difficult. order to get tested. Also, results are not instantaneous However, it is a goal of the ME’s office to provide as the TV would like you to believe. While time is objective analysis of crime scene data. The goal is to condensed on TV, toxicology results can take four to stick to the science and the facts. six weeks for an entire workup. The lab also gets 100 Dr. Williams stated that this was not the case cases a week that need DNA tests. While the process in the past. Medical examiners would get on the is expedited by technology such as computers, you are stand and base their results on the fact that they still not going to get results by the end of the hour. have been working in the field for 20 years. With the implementation of new technology, results have become Myth #3: Fancy lab and fancy clothes. objective, which allows the ME’s office to maintain its apolitical nature. In addition, greater governmental regulation, developed by the National Academy of False. While the lab is up to date, it is by no means Sciences, has helped to establish objective standards fancy. In “CSI,” there are fancy touchscreen monitors across the country. and large 40-inch TVs everywhere. However, this is not the way the actual lab looks. There are no oversized monitors. Plain Dell desktops hooked up to various Myth #5: Medical examiners go to all machines in order to document the results are the crime scenes. norm. There were no iPads or wireless remotes to enlarge samples and results on a jumbo-tron. The walls False and True. A victim is found on “CSI.” The were white and the floor was white. There was nothing ME van comes flying up to the scene and all the lab overly glamorous between the lab or the people. Most technicians jump out of the truck with badges and guns employees were dressed in business casual and nobody at the ready. This part of “CSI” is incredibly inaccurate. had on designer labels. The medical examiner may or may not be present at a crime scene. The police department that is heading Myth #4: The ME's office is tied the investigation typically collects all the relevant evidence and brings it to the ME’s office after the scene to the police department. is processed. The lab technicians do not have badges or guns that they carry around with them, and they False. On “CSI,” it seems as though the medical typically do all their work inside the lab. While an ME examiner’s office is within the police department can go to a crime scene if it is required, and do work in or closely associated with the department. On “Law conjunction with the police department's investigation & Order: SVU” it looks like the ME’s office is in the team, the real decisions are determined in the lab.

10 | juris magazine | winter 2011 The

CSIEffect By Ashley Bozewski, Staff Writer

“Lawyers and judges worry with the forensic shows on television that juries expect there to be forensic evidence in any significant case . . .” said Duquesne School of Law Professor Kenneth Hirsh recently describing the CSI Effect in a local newspaper.1 The CSI Effect is a phenomenon named after the popular television show, “CSI: Crime Scene Investigation,” by which crime and legal television programs, largely focused on elaborate forensic evidence, have increased the standard of proof that a prosecutor must present during trial to establish guilt beyond a reasonable doubt.2 Debuting in 2000, “CSI” quickly became one of the most popular television shows in America. The show is a crime and legal drama focusing on the use of A Medical Examiner’s Office employee analyzes ballistic forensic science and anthropology to solve crimes and evidence using a comparison microscope. to bring criminals to television justice. The television program’s widespread viewership and depiction of seemingly realistic criminal and legal situations led some including: the strong prosecutor effect, and the weak commentators to suggest that viewers were inclined to prosecutor effect, among others.6 Such effects may alter perceive the legal system differently than viewers who various aspects of the justice system by influencing juror had not watched the series. expectations, altering the way lawyers question potential Several newspapers published articles alleging jurors during voire dire, altering the perceived credibility that a connection existed between the show and the of witnesses, and educating viewers on advancements in way its viewers perceived evidence in the legal system, technology. most notably as jurors. These news outlets suggested Cole and Dioso-Villa find that the CSI Effect most that jurors may have unrealistic expectations regarding commonly referenced by the media is the Strong evidence in criminal trials and postulated that jurors were Prosecutor’s Effect. This subsection of the CSI Effect more likely to have a reasonable doubt in the absence of describes the effect of crime solving dramatic television forensic evidence presented on shows like “CSI.”3 shows to alter jurors’ behavior by increasing their In a recent study 79% of prosecutors, defense expectations of evidence which leads to higher acquittal attorneys, and judges surveyed believed the CSI effect rates.7 to be real and to impact juries.4 This stands in contrast to While studies note a general increase in acquittals empirical research, which tends to suggest the opposite. since “CSI” and similar programs gained popularity Few scientific studies have actually linked the increase in among viewers, Cole and Dioso-Villa suggest that popularity of crimes-solving shows with acquittal rates.5 acquittal rates have been rising since before such Simon A. Cole and Rachel Dioso-Villa authors of television programs ever hit viewers’ television screens.8 Investigating the ‘CSI Effect’ Effect: Media and Litigation The CSI Effect describes an interesting, yet Crisis in Criminal Law suggest that inclusive within the controversial, cultural phenomenon which should it exist CSI Effect are actually several types of smaller “effects.” may affect the way that jurors view evidence during trial, These smaller effects all describe ways in which programs and therefore how evidence is presented. Accounting for like “CSI” may possibly affect various aspects of crime the potential of the effect, the well-prepared attorney and law, from the initial criminal act to the resulting trial can try to counteract the effect.

winter 2011 | juris magazine | 11 For example, Professor Hirsch notes that not all 2 Simon A. Cole & Rachel Dioso-Villa, Investigating the ‘CSI crimes result in police dusting for fingerprints and Effect’: Media and Litigation Crisis in Criminal Law, 61 Stan. gathering DNA evidence for an investigation. Therefore, L. Rev. 1335, 1336 (2009). television watching-related bias a person may bring into 3 Tom R. Tyler, Viewing CSI and the Threshold of Guild: the jury box, may be overcome by a prosecutor’s closing Managing Truth and Justice in Reality and Fiction, 115 Yale statement with reference to the requirements to establish L.J. 1050, 1052 (2006). each element of a crime and its existence in the issue at 4 Hon. Donald E. Shelton, Young S. Kim, and Gregg Barak, An bar. Indirect-Effects Model of Mediated Adjudication: The CSI Myth, the Tech Effect, and Metropolitan Jurors’ Expectations Ashley Bozewski is a fourth-year evening student. She is a for Scientific Evidence, 12 Vand. J. Entern. & Tech. 1, 42 (2009). 2008 graduate of the Pennsylvania State University with 5 See Cole & Dioso-Villa, 61 Stan. L. Rev. at 1362-3. degrees in Anthropology and Classics. Ashley can be 6 Id. at 1343-4. reached at [email protected]. 7 Tyler, 115 Yale L.J. at 1064. 1 KDKA Pittsburgh, Legal Expert: Casey Anthony Jurors 8 Cole & Dioso-Villa, 61 Stan. L. Rev. at 1362-3 (2009). Possibly Affected By ‘CSI Effect’. http://pittsburgh.cbslocal. com/2011/07/06/legal-expert-casey-anthony-jurors-possibly- affected-by-csi-effect/ (July 6, 2011)

Reality Check:

DNA Exonerations By Brandon Keller, Executive Editor

“[T]he most fundamental principle of American jurisprudence” is “that an innocent man not be punished for the crimes of another.” These words from our Commonwealth’s Superior Court inspire Professor John Rago’s work both in and out of the classroom. In addition to founding the Post-Conviction DNA Project at Duquesne, Professor Rago chairs Pennsylvania’s Advisory Committee on Wrongful Convictions. In September 2011, the committee proposed legislation to the Senate Judiciary Committee with the goal of reducing wrongful convictions in Pennsylvania. Among the committee’s proposed changes are amendments to Pennsylvania’s laws on post-conviction access to DNA testing for petitioners who maintain their innocence. These changes include a clarification of a convict’s right to petition for DNA testing post-conviction and an elimination of the current time requirement for petitioners to access DNA testing if that testing could exonerate the petitioner. According to the committee’s report, the ultimate goal of the proposed changes is to “allow courts to summarily dismiss frivolous and repetitive, successive petitions while authorizing Professor John Rago stands with Kirk Bloodsworth after them to adjudicate any petition to test DNA post-conviction if his presentation to Rago’s Wrongful Convictions class. required in the interests of justice.” Mr. Bloodsworth is the first death-row inmate exonerated Thus far, 11 convicts have been exonerated on the basis of by DNA evidence in the United States. He spent nine years DNA in Pennsylvania. in prison for a crime he did not commit.

12 | juris magazine | winter 2011 The Nancy Grace Effect: How the Media Molds Public Perception of the Criminal Justice System

By Nathan Ward, Associate Editor

“Somewhere out there, the devil is dancing tonight.” Those are the words Nancy Grace used to open her HLN show following Casey Anthony’s acquittal of murder, an outcome Grace called a “stunning blow to justice.” Grace was not alone, however, in her opinion that the system got it wrong. According to Rasmussen Reports, nearly nine out of 10 Americans are familiar with the verdict in the Casey Anthony trial, and 61 percent of them believe Anthony is guilty of murder. So, how did the general public come to a conclusion so different from that of the 12 individuals responsible for deciding the outcome of this case? For one thing, there were two very different sources shaping these conflicting opinions. The jury saw all the evidence for demonstrating borderline illegal conduct and an inexcusable presented in this case, heard weeks of disregard for the notions of due process and fairness. The testimony, and witnessed firsthand the tactics Eleventh Circuit Court of Appeals also admonished her for and strategies of both the prosecution and defense teams, before playing fast and loose with her ethical duties in knowingly concluding there was reasonable doubt that Anthony was guilty using false testimony from a police witness. It appears this very of murder. The American public, for the most part, based its behavior was carried over to Grace’s television persona. opinion on the endless sensationalized coverage on multiple Numerous legal analysts and commentators have criticized cable news shows, and none more than the Grace’s show. Grace’s “guilty until proven innocent” judge-and-jury style for Grace’s brash outspokenness on criminal justice matters the way it erodes the public’s respect for the criminal justice was formed long before Casey Anthony became a household system. Some of the cases Grace has covered have proven that name. It started when, as Grace claims, she became a victim of criticism justified. Richard Ricci was one man “convicted” in crime after her fiance was murdered while she was a 19-year-old the court of Nancy Grace. In 2002, he was a prime suspect in undergrad at a Georgia university. This led to a drastic change the kidnapping of Elizabeth Smart. Grace repeatedly stated her in career paths, from English professor to felony prosecutor and certainty of his guilt, based solely on his criminal record and his crusader for victims’ rights. past work on the Smart’s home. She additionally proclaimed Her prosecutorial record, while at a 100 percent success rate Ricci’s girlfriend guilty of covering up his “crime.” Two other at trial, was not blemish-free. The Supreme Court of Georgia individuals were ultimately convicted of the kidnapping, and twice commented negatively on her conduct in overturning Ricci died before his name was cleared. her convictions, noting in one case that she exceeded the Grace was also vehement in her certainty that members of latitude given to closing arguments by drawing comparisons to the Duke University lacrosse team gang-raped Crystal Mangum unrelated murder and rape cases. In another, they chastised her in 2006. On show after show, Grace declared as fact whatever

winter 2011 | juris magazine | 13 story District Attorney Mike Nifong said to be true, despite the Defense attorneys have begun to take notice. Attorneys glaring holes in the case. She even berated a guest’s suggestion Nareg Gourjian and Edward Chernoff argued in Los Angeles that the evidence was flimsy and created reasonable doubt as Superior Court that the jury in the Dr. Conrad Murray something out of Nazi Germany. However, when the charges trial should have been sequestered from the danger of were eventually dropped and the story was proven false, a sensationalized media coverage of the trial, singling out Grace’s substitute host aired that news. Grace has never mentioned the “character assassination” during the Casey Anthony saga. In case again. responding to the idea that her show would bias a jury, Grace Even so, no story has received more play on Grace’s show stated, “I guess that makes us, umm … the good guys!” Those than that of Casey Anthony. For three years, Grace provided who believe in a fair criminal justice system, one where a endless commentary on the guilt of the woman she proclaimed defendant is innocent until proven guilty beyond a reasonable “Tot Mom.” And for those who would doubt the impact of doubt, might see things otherwise. that coverage on the American public, the numbers speak for themselves. The ratings for HLN in the month of June, at the height of the trial, put the network in second place among cable Nathan Ward is an Associate Editor of JURIS. He is also a certified news. It was the highest ratings in the history of the channel. legal intern in the Duquesne Law School Bill of Rights Clinic and a law clerk at Burns White, LLC. A magna cum laude graduate of They even made a serious prime-time challenge to Fox News, Point Park University with a B.A. in English, Nathan spent time in the No. 1 cable news network, in the coveted 25–54 age group. the advertising and tech industries before entering law school. He will In contrast, HLN’s ratings just before the start of the trial in graduate from the Duquesne University School of Law in 2012 and May were mired in a double-digit slump. can be reached at [email protected].

Female TV Lawyers: Ladies or Tramps? By Gabriela Steier, Managing Associate Editor

In one word: Neither! They are only entertainers. Female lawyers on TV are interesting because they are stylized and rehearsed exaggerations played by famous actresses, either as darling and ditsy, or sexy and sly caricatures of women. But no one would want to be represented in court by Elle Woods! Society’s confidence in lawyers is known to be on a downward slope. Could it be based on a wrong impression people get from TV lawyers? To restore some of the confidence in the legal profession, I will debunk the top three female TV lawyer myths.

14 | juris magazine | winter 2011 TV Myth # 1:

They are pretty, skinny ladies who win cases by turning heads. A little outdated but excellent example is Ally McBeal (Calista Flockhart) in the fictional Boston law firm Cage and Fisch. The sexy attorney finds herself distressed about love and dating during work breaks in the firm’s restroom. But, did she ever really work on the show? Compare the new twist on female lawyer caricatures in the show “Drop Dead Diva” starring Jane (Brooke Elliott), a ditsy model in the body of a chubby lawyer. Jane is not a gorgeous vamp, but she is still consumed by love and dating. Like Ally McBeal, she is never really working on the show either. But the truth is, female lawyers must balance their private lives and work a whole lot! They invest many hours of research into the one moment-to-shine in court. Or better, many long days of transactional work and intense strategic planning pass for every moment they spend in court — if any — and we do not see that preparation on TV.

TV Myth # 2:

Female law professors are mean snobs. Picture Professor Stromwell (Holland Taylor) at Harvard Law School, challenging Elle Woods (Reese Witherspoon) during a socratic lecture in “Legally Blonde.” In reality, female law professors are not those uptight elderly ladies with pearl chokers we see on TV. They are experienced, highly educated women of strong character. Our viewers lose faith in the justice system. From my own experience own Rona Kaufman Kitchen, assistant professor at Duquesne as an intern for a female judge of the Pennsylvania Superior University School of Law, is a true role model for her students — Court in Pittsburgh, I know they are admirable working a brilliant, accomplished and elegant lady with high professional mothers, who master the art of balancing career with family life. standards. She told Juris that “there is not enough diversity on TV, so female lawyers quickly become caricatures.” Professor As Professor Kitchen pointed out, the glass ceiling and maternal Kitchen illustrated the flip side of the ditsy sexy lawyer on TV wall theories hold true, and yet we begin to see characterizations with Carly Fiorini, former CEO of Hewlett-Packard. To this of women overcoming those hurdles. There is more to a female day, casebooks portray Fiorini as a “sly, powerful bitch,” which, lawyer than a girly pushover or a ruthless careerist. One of the according to Professor Kitchen, is a common but incorrect few TV lawyers who teaches us differently is the darling and TV myth of female lawyers. “Diversity eliminates caricatures,” elegant mother of five, Clair Olivia Hanks-Huxtable (Phylicia suggests Professor Kitchen. We hope that TV producers will Rashad) on “The Cosby Show,” and even Miranda Hobbes listen to her carefully. (Cynthia Nixon) on “Sex and City,” stepping up against sexist male colleagues. Let us hope that new generations of female TV lawyers will reveal increasingly competent and reliable role TV Myth # 3: models of strong character, who can restore the viewers’ faith in our profession. Female judges are indecisive scatterbrains. Think of actress Sherri Shepherd as the all but impartial female judge on “Hot Gabriela Steier is the managing associate Editor for JURIS, research in Cleveland,” with a crush on a hot dimwitted male defense assistant for Professor Jane C. Moriarty and author of several attorney. Contrast her to Amy Brenneman, the family court publications. Her academic concentration is food and health care law combined with international intellectual property and commercial judge in “Judging Amy,” a divorced, heartbroken mother who law. She earned her bachelor of arts at Tufts University in Boston in still lives at home. Those believable TV judges make half- 2007, with a major in English and a minor in studio art, and she will hazardous rulings in family court, while they cannot align their graduate from Duquesne University School of Law in June of 2012. own private dramas. It is nothing but natural then that TV She can be reached at [email protected].

winter 2011 | juris magazine | 15 Life of a Sports Lawyer By Daniel McGrane, Web Editor

As a local kid, Pittsburgher Larry Silverman would wear a small glove on the baseball diamond because Pittsburgh legend Bill Mazeroski wore a small glove as well. An infielder, Silverman would try to mimic Mazeroski’s motions in turning double plays. It wasn’t just Maz, though; he would show up hours early to games for the chance to watch Roberto Clemente shag pop- ups in right field. “To see him out there make the most routine things look so easy, so graceful,” Silverman said, “it was really something. He was such a great player — he had a cannon for an arm, but also just to see the way his neck would turn to follow a fly ball ... it was special.” But to assume that Silverman went to bed every night with dreams of drafting contracts for his hometown team would be a stretch. “This was never a goal for me because there wasn’t a job,” Silverman said. “Sure, I was a lifelong baseball fan, fan of the Pirates, but the position didn’t exist.” That all changed in early 2002 when then General Manager David Littlefield decided to bring on a lawyer full-time. Coming over from the Florida Marlins, Littlefield was used to having an attorney in-house to help with day-to-day baseball operations as well as some more intricate issues, like player salary negotiations. While working at Dickie McCamey and Chilcote, Silverman, a 1978 Duquesne University School of Law graduate, had experience handling arbitration cases with the Pirates since the 1993 season. After a few interviews, he was in and began serving as the club’s senior vice president and general counsel. The position had Silverman dealing with some of the sexier aspects that make a baseball team run, like negotiations with agents and participating in charity events with players. For the most part, though, he says his job was, essentially, just like any other corporate law position.

16 | juris magazine | Winter 2011 “With Wiz, [the seller] didn’t ask permission to use the logo and he probably wouldn’t have gotten it even if he had,” Silverman said. “Major League Baseball does a great job of protecting their brand. A lot of times they end up taking care of it.” Silverman admits that, even though he is working a job he really enjoys, it is not immune to dry spells and ruts. “There’ll be days when it can just drag but then, you know, you look around and see all the pictures, where you are,” he said. “It doesn’t happen often. But if the team’s on an eight-game losing streak, you still have to show up for work. “In a lot of ways it’s just like a typical corporation,” he added. “But General Motors can make a profit, not lay anyone off and make money for their shareholders, and everyone will agree it’s a good year. With us, you can do everything right but if the team loses 100 games, the season’s a failure.” Although the Pirates are coming off their 19th consecutive losing season, Silverman admitted that 2011 was a pretty fun His wide range of work and the issues involved therein year and time to be with the team. have him dealing with everyone from the maintenance and “[Center-fielder Andrew] McCutchen’s one of those grounds crews to signing bands to play after the games. players,” Silverman said, in reference to the mention of baseball “I work with every contract from the $500 a band gets for legends like Clemente and Mazeroski. “[McCutchen]’s exciting. playing in a suite after a game to the millions of dollar contracts You kind of get that feeling that any moment that this could be for the television deals,” he said. the highlight play.” “I get to touch everything,” Silverman said. “We have over It is apparent that the fan in him has not faded over 300 non-baseball employees and, as the only lawyer, I get to the years. work with almost everyone. Some people you might not see for “The first year I was hired on I went down to Florida with weeks but then it will be for two, three days in a row.” my brothers,” Silverman said. “I knew I was going to have a Being hands-on with so many people and so many parking spot but when we pulled up, here I had one with my different aspects of the Pirates organization is something that name on it. Everybody thought that that was pretty cool. But Silverman says helps to break up any monotony that can come when I got out, I realized I was parked right next to Mazeroski’s along with being a lawyer. The nature of the position, though, spot. So there I was having my brother take a picture of me— breeds apprehension among his coworkers. “Lawyers are often seen as the bad guys,” Silverman said. not by my spot but by Maz’s! I’m not even sure that was his car.” “It’s amazing to see people tense up when they’re around me. But when we’re able to work it out, and I’m able to say yes to Daniel McGrane is the Web Editor of JURIS. He is in his third year at Duquesne University School of Law. He is a research assistant certain things, that can feel pretty good.” at the Duquesne Center for Legal Information and a law clerk at One such issue where he finds it necessary to say “no” is Edgar Snyder & Associates. Daniel earned his undergraduate degree guarding the team’s intellectual property. With the proliferation in Journalism at the University of South Dakota. He will graduate of bootlegged materials floating around the Strip District, from Duquesne in June and can be reached at daniel.mcgrane@ it should come as no surprise that the issue of intellectual gmail.com. property protection comes up fairly often. Specifically, one situation that has come to Silverman’s attention in the past year called for quick action. This involved an image of rapper Wiz Khalifa adorned in Pirates gear, drugs and weapons; this has to be immediately thwarted.

Since the writing of this article, Silverman and the Pirates have parted ways. Silverman remains a sports law instructor at both Duquesne University School of Law and the University of Pittsburgh School of Law.

winter 2011 | juris magazine | 17 Law students used to think of public interest lawyers as hippies. Now, they are known as “employed.” A Career in Public Interest Law: A Reaction to the Financial Meltdown or Charitable

Motivation? By Alicia Nealon, Staff Writer

“Why did you go to law school?” Often heralded as the area of practice where the law meets social action, public interest law seeks to further interests It is a question every law graduate has faced in some shared by the entire public or significant segments of it. The variation beginning before he or she entered the hallowed practice of public interest law includes government positions halls of law school and continuing throughout his or her or non-profit firms. career. While most can answer this broad question with A field of law focused on the advancement of the public an equally broad response such as “I wanted to develop my good, rather than commercial or personal gain, naturally analytical thinking, strengthen my writing skills and develop begs the question: What is the draw to an area of law that has legal skills,” the most honest answer would probably be “to notoriously low salaries and even sparser resources? get a job.” And a growing number of law school graduates are choosing to get this coveted job in public interest law.

18 | juris magazine | winter 2011 Although once a stereotypical “fall-back” area of practice, School of Law, named for the late 1938 Law School graduate in recent years, public interest law has developed into a who served as vice president of Gulf Oil and represented prominent and sought-after area of employment. the company as head of industrial relations, is a $1.4 According to a recent article in the National Law Journal, million endowment meant to encourage pursuit of careers more law school graduates are choosing public interest in nonprofit public interest law or in local, state or federal careers, with an increase from 2.1% in 1990 to 6.7% in 2010. government. Applicants to the loan repayment assistance These figures come from the National Association for Law program must meet three criteria: 1) employment in a Placement1. qualifying public interest law position 2) a maximum of At first glance, one might easily explain these statistics $45,000 in adjusted gross income, and 3) outstanding law by simply blaming the economic downturn. With a bad school debt. The maximum amount an applicant can receive economy, the bigger firms cannot hire, so surely one can work at this time is $5,000 a year. Recent recipients include Rev. as a public defender or an attorney at legal aid for a few years Ernie Poland, Jr., pastor of Keyser Presbyterian Church in before securing a corner office in a high-rise building. This Keyser, West Virginia, and director of Justice For All Legal explanation, however, would be wrong. Services; Nicole Wetherton, a 2006 Duquesne graduate Ed Steveson, attorney with Neighborhood Legal Services who works in the Allegheny County District Attorney’s in Pittsburgh, believes that the economy has not pushed public Office; and Nicole Scialabba, previously a staff attorney with interest work as a fall-back option to a big firm job. Instead, Neighborhood Legal Services in Pittsburgh. the economy has pushed law students to enter law school Second, the federal College Cost Reduction and Access with a poignant and focused passion for public advocacy. “In Act (CCRAA) of 2007 has the potential to take a large portion the wake of the economic downturn, people have seen their of the debt burden off of attorneys who pursue long-term friends, families and neighbors lose everything. Often, the only careers in public interest law. Essentially, this legislation allows people willing and able to save their homes from foreclosures public interest lawyers to have a major portion of their federal or fight for unemployment compensation after they have been education loan debt forgiven after 10 years of full-time work laid off are lawyers working for free in public interest groups.” in the public interest. This legislation, like LRAPs, prevents He explains, “When the victims are those you love, the work debt from limiting professional options after law school. of public interest attorneys becomes paramount.” While it used to be that those who answered the question Due to their increasing popularity, public interest law “Why did you go to law school” with “to become a public jobs are highly competitive. Director of Career Services at interest lawyer” were perceived as either self-righteous Duquesne Law School Maria Comas explained that employers do-gooders or big firm attorneys-in-waiting, recent law in public interest require prior experience in the field. school graduating classes have shown that the perception of “Employers look for law graduates to show a commitment to public interest law is changing to reflect its true intention and public advocacy during, if not before, law school.” value. As the economy continues to affect all citizens of every While law students who forge a career in public interest economic background, public interest lawyers are at the front law expect their law degrees to provide more than monetary lines helping Americans find security in the midst of financial compensation, lending institutions still expect their payments. upheaval. Although motivated by the importance of their work rather than the zeroes of their paycheck, more often than not, law Alicia Nealon is a staff writer for JURIS. She is also a Duquesne school graduates who initially pursue public interest law are University School of Law student ambassador and an intern at eventually forced to forego these careers because of the burden Eckert Seamans Cherin & Mellot, LLC. Alicia earned her undergraduate degree at St. Joseph’s University in 2010, where she of their student loan debt. majored in English, and will graduate from Duquesne University As a response to these developments, law schools and School of Law in June of 2013. She can be reached at alicia.nealon@ the government started programs and endowments aimed gmail.com. at minimizing the debt that graduates accrue to pay for law school. 1 Karen Sloan, Do-Gooders Thrive- Public Service Jobs See a Spike in Popularity and Prestige, The National Law Journal, (June 27, 2011; accessed First, many law schools have loan repayment assistance September 27, 2011) programs (LRAPs), which pay off a portion of the monthly jobs. The William B. Billock LRAP at Duquesne University

winter 2011 | juris magazine | 19 Modern Technology Protecting Privacy on the Net

By Jesse Krueger, Staff Writer

The Kodak Moment — the fuel and fodder for grand- past — a fact that people are, more often than not, learning parents and scrapbookers everywhere — was a major concern the hard way. for Supreme Court Justice Louis D. Brandeis in the year 1890. What once existed as cautionary tales about the dangers Brandeis and legal scholar Samuel D. Warren worried that of excessive disclosure online have become daily concerns for the instant photograph would “invade the sacred precincts of many citizens; Rosen tells anecdotes about bars that require private and domestic life,” as they wrote in their groundbreak- you to sign a disclosure agreement promising not to reveal ing Harvard Law Review article “The Right to Privacy” — in the happenings within via social media, and employers and which they tried to define the amorphous right that defies universities that are increasingly adopting policies to govern definition to this day. how their employees and students behave online. Social media, most prominently Facebook, whose Meanwhile, legislators, social scientists and technology never-ending cycle of updates and improvements seems gurus are scrambling to catch up with the rapidly evolving to continually erode the private life of the individual, is technology, but it is increasingly unclear what form any the latest progenitor of privacy concerns. According to its prospective protection will take. Creative solutions abound, website, Facebook currently boasts over 800 million active ranging from the creation of programs that automatically users, who post over 25 billion pieces of content per month, terminate digital data after a certain amount of time (called whether in the form of photographs, status updates or online “digital forgetting”) to social programs modeled on the Fair messages. Such rampant exhibitionism begs the question of Credit Reporting Act, which allow you to claim reputation whether our very conception of privacy has changed in the bankruptcy periodically and delete all personal information digital world. about yourself from the web. Entrepreneurs are even creating If one observes the flood of “Twittergation”(as the media businesses based around protecting their clients’ online has affectionately dubbed social media-based litigation), it reputations by creating and promoting websites that positively becomes clear that our idea of privacy has not changed, but impact the client. rather the lengths to which we must go to protect it have. In a The harsh reality is that people demand privacy in their time where applications allow you to easily see where someone personal and professional lives, while still wishing to main- is via FourSquare, what they’re watching via GetGlue and for tain a separate online presence. As advances in technology whom they’re voting via Obama Clock, the need for proac- and online services continue to make that less and less likely, tive protection is paramount. The public demand for private Americans are being forced to make their privacy a prior- information is growing exponentially. It is estimated that over ity and to continue to hope that the privacy laws evolve to 75 percent of U.S. recruiters and human resource professionals stem the tide of transparency and allow everyone the best of conduct online research into potential hires. Seventy percent both worlds. of U.S. employers have rejected an applicant because of some- thing found online, according to Jeffrey Rosen, professor of Jesse Krueger is a third-year law student and a Staff Writer for law at George Washington University. JURIS. He also serves as a senior staff member and case note Editor Rosen suggests that most applicants don’t even realize for the Duquesne Business Law Journal. Jesse graduated from what information is out there, despite having supplied most of Washington & Jefferson College in 2009 with a B.A. in English and it themselves. In a New York Times article from 2010 headlined, French with an emphasis on professional writing. Currently, he “The Internet means the end of forgetting,” Rosen argues that is pursuing an M.B.A. in International Business from Salem International University in addition to his studies at Duquesne. He because the internet never forgets, the disclosure of private can be reached at [email protected]. information is much more hazardous than it has been in the

20 | juris magazine | winter 2011 What Kind of Establishment Clause is Appropriate for Religion in an Age of Science?

By Bruce Ledewitz, Professor of Law

It’s no secret that religious liberals and secular non supposed limits on religion in the Constitution versus the believers tend to support government neutrality toward reli- presence of religion in American public life was not resolved gion and a rather strict separation of church and state. I would or even really addressed in the courts. Surprisingly, given this like to suggest that, beyond a certain institutional separation lack of prior case law, Justice Hugo Black’s majority opinion of church and state, the separation position is premised upon in Everson announced a full-blown judicial commitment to a prescientific view of religion, really a supernatural view. But government neutrality toward religion and the wall of sepa- the kind of religion suitable to a scientific age cannot be so ration between church and state. Although the actual holding readily separated from political life. in the case was a 5-4 decision allowing government provision Between the founding era and 1947, the year that Everson of transportation for students in private religious schools, the v. Board of Education was decided, the tension between opinion’s proclamation of neutrality and separation spoke for the entire Court.

Spring 2011 | juris magazine | 21 The period since Everson has been Given all this upheaval, the question marked by ebb and flow in the Supreme of what kind of Establishment Clause is Court’s willingness to redeem the promise appropriate for religion in an age of science of government neutrality toward religion. is an open one. The Court has swung wildly from reaffir- We face a fundamental and substan- mation of neutrality in 2000 in Santa Fe tive disagreement about the meaning Independent School Dist. v. Doe to approval of the Establishment Clause, which of large-scale public vouchers for support of has, unfortunately, become a disagree- religious private schools just two years later ment about the nature of America. in Zelman v. Simmons-Harris. The Court There is a surprising and destruc- split almost evenly in 2005 over two sets tive consensus among American legal of Ten Commandments displays, uphold- thinkers that we face an either/or ing one and striking down another, by 5-4 Professor Bruce Ledewitz decision point concerning America’s basic margins on the same day. While five justices identity. Here is how Ronald Dworkin, per- strongly reaffirmed government neutrality between religion haps our leading liberal constitutional theorist, described the and irreligion, Justice Antonin Scalia, speaking for himself issue in his book, Is Democracy Possible Here?: and two other justices, advocated constitutional acceptance of Should we be a religious nation, collectively committed “public acknowledgment of the Creator.” Increasingly, the Court’s deep divisions over the meaning of the Establishment to values of faith and worship, but with tolerance for Clause have manifested in techniques of avoiding deciding religious minorities including nonbelievers? Or should anything, on the ground of lack of standing. we be a nation committed to thoroughly secular govern- As a result of all this, I tell my students that there ment but with tolerance and accommodation for people is no agreed-upon interpretation of the meaning of the Establishment Clause. It is doubtful that a majority on the of religious faith? A religious nation that tolerates non- Court would reaffirm Everson’s language today. belief? Or a secular nation that tolerates religion? At the same time that the meaning of the Establishment Clause is in disarray in the courts, religion in American Justice Scalia absolutely agrees that this is the question, public life is increasingly the subject of political and social finding it represents a fundamental divide for our nation. controversy. There is the resurgence of religion both in Scalia wrote in his dissent in the Ten Commandments case, America and in the world, as attested by works such as “[I]n the context of public acknowledgments of God, there are God is Back by John Micklethwait and Adrian Wooldridge. legitimate competing interests: On the one hand, the interest Conversely, there is the astounding recent growth in of that minority in not feeling ‘excluded’; but on the other, the secularism and religious non-affiliation, especially among interest of the overwhelming majority of religious believers the young, as testified to in recent opinion polls culminating in being able to give God thanks and supplication as a people, in the rise of Christopher Hitchens and the other New and with respect to our national endeavors. Our national Atheists and leading to President Obama’s electrifying tradition has resolved that conflict in favor of the majority.” acknowledgment of nonbelief in his 2008 inaugural address. Scalia, like Dworkin, sees no room for common ground.

22 | juris magazine | winter 2011 I have to say that I hope Dworkin and Scalia are both out with regard to religion and science, the relationships of wrong. Any attempt to actually answer the Dworkin/Scalia conflict and independence are narrow and limited. question about America’s identity — which amounts to asking In Scalia’s case, in which religion is brought into public whose side you are on — would be extremely destructive of life, so that the biblical commandments of God are given political and social community in the United States. political force and policy is judged by the will of that Creator And I think they are wrong, because the relationship God, we have Barbour’s third category relating religion and between religion and political life is much more nuanced than science — dialogue between religion and political life. they admit. That recognition of connection between religion The problem with Scalia’s position is that it attempts to and politics is the link between my work on the Establishment freeze a history of Christian hegemony and apply it without Clause and the underlying project of the Institute on Religion modification to the current, vastly changed pluralist American in an Age of Science. context. The Creator God of the Bible is not the future of The conceptualization of religion and public life as sepa- American political life. Scalia’s dialogue is too narrow and rate is reminiscent of two of the four ways of relating religion limited to be useful. and science contained in Ian Barbour’s Gifford Lectures, Much more fruitful and healthy is Barbour’s fourth cat- Religion in an Age of Science. Religion and public life would egory of relating science and religion, that of integration, have to be either in conflict or at least independent of each which Barbour identified with various forms of natural and other to have this kind of separation of church and state. The process theology. In the mode of integration between religion conflict model is reflected in Augustine’s City of God, espe- and politics, we would not have to be choosing so divisively cially as the distinction of church and state came down to between the secular and the religious in public life. We would us through the image of separating the garden of the church not have to answer the Dworkin/Scalia question. from the wilderness of the world, as in Roger Williams. But what would such integration of religion and politics The independence model is implied by suggestions that look like? One form of integration has been known for a long religion is private while government is public. Religion is eter- time in American politics as civil religion. American sociolo- nal whereas politics is contingent. gist Robert Bellah popularized Rousseau’s term, civil religion, The call for government neutrality toward religion is in his 1970 book, Beyond Belief. Bellah argued that the use of premised on one of these two modes of relating religion and the word “God” on public occasions means that “the will of public life — conflict or independence. But, as Barbour points the people is not itself the criterion of right and wrong. There is a higher criterion in terms of which this will can be judged; it is possible that the people may be wrong.” Bellah’s understanding of the political and public use of “God” is not much different from the use of “Creator” in the Declaration of Independence: “We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights.” Naturally, some religious people treat that language as an argument for the existence of God. But that is not a fair reading. The existence of God was not an issue at the time of the Revolution. Rather, the Declaration was making a

winter 2011 | juris magazine | 23 political point about the nature of rights. Rights do not come from men — that is, not from the king or Parliament. And thus, as Bellah said of right and wrong, no positive politi- cal power has the authority to revoke rights with which all human beings are endowed. This was the major point of the Declaration of Independence. This kind of integration of religion and politics does not demean either realm. It does not baptize the economic/politi- cal status quo as good, nor does it undermine the sectarian and orthodox uses of religious imagery. The religious believer continues to have her own understanding of religious imagery that secularists need not share. Government use of religious imagery in this integrative sense thus allows us to be both reli- gious and secular without having to choose one predominant What I mean by an integration of religion and politics is national identity. not a theocratic commitment to any particular set of policies What I have tried to do in my thought to be demanded by this or that religious tradition. new book, Church, State, and the I mean precisely what Kennedy seems to call religious — a Crisis in American Secularism, is commitment to ethics and morality that transcends human promote such integration of religion invention. I don’t think that a secular society can be healthy and politics as a way of combating without a strong commitment to that kind of ethics and materialism, relativism and even morality. nihilism in American secularism. I admit that it is a kind of faith that justice is real. It is The close relationship of separa- a kind of faith that can be expressed, among other ways, by tion of church and state and values a public display of the Ten Commandments. It is a kind of relativism was sharply stated in Lee v. faith that reality is trustworthy and that faith can be expressed, Weisman, the case that prohibited prayer at public high school among other ways, by a national motto stating “In God We graduations as a violation of the Establishment Clause. Justice Trust.” Anthony Kennedy’s majority opinion saw in prohibited prayer Religious imagery has always contained claims that tran- an assertion of the objectivity of values. He seemed, danger- scend any simply sectarian meaning. Religious imagery has ously in my view, to restrict commitment to the objectivity of always been integrative of public universal values as well as values to religion. Kennedy wrote, sectarian purely religious claims. While government cannot and should not judge among any theological disputes, govern- ment may certainly assert and even establish this higher law We are asked to recognize the existence of a practice tradition. Doing so does not establish religion; it recommits us of nonsectarian prayer, prayer within the embrace of to a basic American faith. And it is a faith entirely consistent what is known as the Judeo-Christian tradition. … If with the role of religion in an age of science. common ground can be defined which permits once Bruce Ledewitz has taught at Duquesne Law School since 1980. He conflicting faiths to express the shared conviction that was secretary to the National Coalition Against the Death Penalty, there is an ethic and a morality which transcend human 1985-1990. He has written widely in both legal journals and nation- al media such as The New York Times, Wall Street Journal and invention, the sense of community and purpose sought Chicago Tribune and is a regular contributor to Religion Dispatches by all decent societies might be advanced. But though and Huffington Post. His latest book is Church, State, and the Crisis in American Secularism, which was published in 2011 by Indiana the First Amendment does not allow the government to University Press. His earlier books, Hallowed Secularism: Theory, Belief, and Practice (Palgrave Macmillan 2009) and American stifle prayers which aspire to these ends, neither does it Religious Democracy: Coming to Terms with the End of Secular permit the government to undertake that task for itself. Politics (Praeger 2007), have been widely discussed and reviewed. A version of these remarks was presented at the 2011 Conference of The Institute on Religion in an Age of Science.

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The Islamic Defense to Murder – Does The plot centers on the prisoners housed in “Emerald City,” nicknamed “Em City” by the prisoners. The inmates comprise of different groups: Shari’ah Law Justify “Honor Killings”? the “Homeboys” (the African Americans), the Muslims, the “Wiseguys” By Jessel Costa, Associate Editor (the Italians), the Latinos, the Irish, the Aryans, the Bikers, the Gays, etc. – the list goes on. The show follows the struggles these inmates face Over the course of the last decade, U.S. American interest while in prison, highlighting the social and racial tension between the in – or perhaps more accurately, U.S. American suspicion of – the different groups. The inmates fight amongst themselves over anything Islamic religion has been piqued. As is often the case, this hunger for and everything: the illicit drug trade they run, the kitchen duties they information has been fed by myth and conjecture more than by factual are assigned, which new inmate will suffer the fate of being sodomized analysis, and has ultimately given way to numerous misconceptions his first night in confinement, so forth and so on. While all of this is regarding Muslim citizens. going on, the corrections officers turn a blind eye, or worse, become Some of the most far-fetched and widespread misconceptions involved. Some of the officers help to run the drug trade; others help to regarding Islam concern the treatment of women within the religion; set up prisoner-on-prisoner violence and killings; others have wanted specifically, the idea pervades that Shari’ah can be used as a means to and unwanted sexual relationships with the inmates. I am a big fan of legally justify the killing of “dishonorable” female family members. this series and I truly feel it provides a lot of insight into the dynamics of our country’s prison system. However, I thought while watching the show, many of the events that take place are so overly dramatized and unrealistic. A corrections officer surely could never involve his or herself Guantanamo Bay detainees remain in in such unsavory and illegal behavior? legal limbo By Eric Donato, Blogger Proposed legislation in Mexico may “The orders that I signed today should send an unmistakable fundamentally alter the institution of signal that our actions in defense of liberty will be just as our cause, and that we, the people, will uphold our fundamental values as vigilantly marriage as we protect our security,” President Obama announced in January By Emily Shaffer, Blogger 2009 during the signing ceremony for his executive order to close the Guantanamo Bay military detention facility. “Fifty percent of all marriages in America end in divorce.” Okay, “Once again, America’s moral example must be the bedrock and so Americans aren’t that bad. The divorce rate is actually going down, the beacon of our global leadership.” meaning this statement is no longer true (by a 9% difference). In Over two years later the facility remains open, housing 171 proportion to this drop in the divorce rate however, it’s evident that the inmates according to an ongoing analysis by NPR and The New York marriage rate in America is also going down because more American Times. Crippled by delays, administrative setbacks, Congressional couples are living together without getting married. Though this isn’t the opposition and, ultimately, acquiescence by the president, closure of the traditional way of doing things, considering the even higher divorce rate Guantanamo Bay detention camp doesn’t look likely in the near future. in Mexico City and its proposed legislation, it might be the smarter way. But how did this impasse come to be, and what does it mean for the For those of you who haven’t heard, lawmakers in Mexico City are men imprisoned at the camp who are still waiting – some for over nine proposing a two-year marriage contract in lieu of a normal marriage years – to have their day in court? license so residents would be able to marry for a two-year trial term before committing to each other for life. Mexican lawmakers expect a vote on this by the end of the year, and expect the new legislation to New charges shed light on prison abuse reduce Mexico City’s current divorce rate of eight out of 10 marriages. This new legislation would require the two-year signees to attend By Jenna Smith, Blogger discussions on conflict resolution and division of assets in the event that they go their separate ways after the two-year period. If the couples Sodomy. Rape. Hate. Shanks. These are all of the words that come decide to remain together, they may sign an official marriage license or to mind when I think of the HBO series “Oz.” “Oz” is about a fictional renew the contract. The Catholic Church and Catholic Community in group of prisoners in Oswald State Correctional Facility, a maximum- Mexico City are obviously opposed to this liberal proposal, calling it security prison whose location is unknown for the entirety of the series. “irresponsible and immoral.”

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