Clinical Legal Education Newsletter

William S. Richardson School of Law, University of Hawai̒i at Mānoa

Inside this issue:

Prosecution Clinic 2

Defense Clinic 2

Live –Client Clinic

Updates

3

Volume 1, Issue 2

Spring 2012

Alvin Jardine finally freed after almost 20 years. He saw his adult daughter for the first time last year.

the possibility of an early parole by

refusing to enter a sex-abuse treat-

ment program that would have

required him to admit guilt.

The Jardine case is the Hawaii

Innocence Project’s first case to have

had its conviction set aside. Mr.

Jardine’s application was also one of

the first reviewed and accepted by

the Hawaii Innocence Project,

shortly after the project was

launched in 2005.

Peter Neufeld, who along with

Barry Scheck started the national

Innocence Project in 1992, originally

contacted the University of Hawaii’s

(Continued on page 4)

T hanks to the Hawaii Inno-

cence Project, Alvin F.

Jardine III was set free last

year after serving almost twenty

years in prison for a crime he says

he didn’t commit. The Hawaii

Innocence Project presented new

DNA evidence of tests done on a

tablecloth that had been covering

a ‚papasan‛ chair that the victim

and her attacker were on during

the rape. Those tests excluded

Mr. Jardine as a contributor of

male DNA detected on three of

four stains of blood or bodily

fluid, with a comparison unable to

be made on the fourth stain.

Finding that these DNA test

results constituted newly discov-

ered evidence that could not have

been produced before or during

the trial, and that the DNA evi-

dence was exculpatory or favor-

able to the defendant and could

change the result of the trial, Maui

Circuit Judge Joel August set

aside Jardine’s 1992 convictions

and ordered a new trial. Charges

were eventually dropped against

Mr. Jardine last July.

According to the Honolulu Star-

Advertiser, Jardine was convicted

on four counts of first-degree

sexual assault, three counts of

attempted first-degree sexual

assault, kidnapping, and first

degree burglary and sentenced to

35 years after he was identified by

the alleged victim as the person

who broke into her home, held

her at knifepoint, and repeatedly

raped her. This conviction came

after two earlier trials resulted in

hung juries. Throughout it all,

Mr. Jardine maintained his inno-

cence. He even denied himself

PERSISTENCE PAYS

W e proudly present this

second issue of the

University of Hawai`i

Clinical Legal Education Newslet-

ter. Once again, 3L Justin Lee

deserves all the praise for making

this issue possible.

To complement our inaugural

issue (August 2011), which fo-

cused on our civil clinics, this

issue spotlights our criminal clin-

ics. Our lead story is on the Ha-

wai`i Innocence Project (HIP),

which with the help of its clinic

students, scored an impressive

victory leading to the release of

Alvin Jardine. We follow with a

description of our Prosecution

and Defense Clinics, established in

1984 and 1979 respectively by our

founding director, John Barkai.

John still teaches the Prosecution

Clinic. The Defense Clinic is now

taught by Tim Ho (WSRSL ‘87),

the first deputy of our Public De-

fenders Office, along with Ronnie

Kawakami (’85) and Bill Bento

(‘87). I hope you enjoy this issue.

Aloha,

Calvin Pang

calvinp@hawaii.edu

Editor’s Notes

HAWAII INNOCENCE PROJECT SUCCESS

Professor Virginia Hench Director, Hawaii Innocence Project

‚*The legal system+ strives to get to that

point where these kinds of errors are pre-

vented, but it will never happen. These

things can happen even when you’re acting

in good faith. We don’t assume a person is

innocent or guilty, but we look at the avail-

able information with fresh eyes. If they’re

telling the truth, what could prove it?‛ — Virginia Hench, Hawaii Innocence Project director

Getting into Court — Prosecution Clinic Spotlight

Page 2

T he prosecution clinic is

designed to meet the

needs of students who

have an interest in either criminal

or civil litigation, who want to

develop their oral advocacy skills,

and who want to improve their

public speaking. The goal is not

to make you a prosecutor. The

Prosecution Clinic is an academic

course with a very strong practi-

cal component. This clinic allows

students to have a foot in both the

worlds of law practice and law

school, from which they can ex-

amine practical, ethical, and pro-

fessional issues relating to litiga-

tion while they develop their

practical lawyering skills.

Litigation skills are taught

through the prosecution of real

traffic and misdemeanor criminal

cases in court and various in-class

simulations including the simula-

tion of a major mock civil trial

which includes expert witnesses.

The classroom component meets

twice a week throughout the se-

mester (except for the last three

weeks).

From the student's perspective,

the heart of the Prosecution Clinic

is the courtroom experience. Stu-

dents go to Honolulu District

Court every week in this clinic

and the course provides more

courtroom time than any other

clinic in the school. During the

first three weeks of the semester,

students only observe in court,

but by the fourth week, after

classroom discussions and simu-

lations, they are in court to try

their own real cases under the

supervision of members of the

Honolulu Prosecuting Attorney's

Office.

Although the majority of civil

and criminal cases never go to

trial, by the end of the semester

most students have had 3 to 4

actual trials and a sometimes

some students have had up to 10

trials. (Of course there are always

one or two students who never

have a case go to trial, and that is

part of the reason the clinic does

so much simulation).

Students go to court once a

week in the morning or afternoon

(starting at 8:30 AM or 1:30 PM)

every week. After the first thee

weeks of observations, students

go to court on the same schedule

every week to try cases. Depend-

ing on the court's calendar for the

day, they will be there from 1 to 3

hours. Therefore to take this clinic

students must have one half day

per week with no classes, work,

externships, or other commit-

ments.

In preparation for the actual

courtroom cases, early in the se-

mester the Prosecution Clinic and

the Defense Clinic try simulated

cases against each other one night

in the District Court. Each Prose-

cution Clinic student tries a case

against a Defense Clinic student.

A deputy prosecuting attorney

and a deputy public defender are

present in each courtroom to

serve as judges and provide feed-

back after the trial.

The evidence class is a co-

requisite for this clinic. In the fall

semester, students can take this

clinic in the same semester that

they are taking the evidence

course. Students who have taken

the two courses together seem to

unanimously agree that taking the

courses concurrently has im-

proved their learning in both

courses. However, it is not neces-

sary to have taken either trial

practice or criminal procedure

before taking the prosecution

clinic. This clinic covers the fun-

damentals of trial practice

(although not jury work) and

criminal procedure issues are

almost never critical in the types

of cases that are handled in this

clinic.

A unique aspect of this clinic is

that students may select this clinic

for either three or four credits. All

the students work at the same

pace and schedule during the first

(Continued on page 3)

Clinical Legal Education Newsletter — Spring 2012

Professor John Barkai

Prosecution Clinic

Prosecution Clinic

Law 590B

Credits: 3 or 4

Co-requisite: Evidence

Limited enrollment: 12

There are 2 classroom ses-

sions each week. Students

also appear in court once a

week to try cases.

Students enrolled under

the 3-credit option end the

class about 3 weeks before

the end of the semester

and do not participate in

the large mock civil trial.

Timothy E. Ho ’87

Defense Clinic

Defense Clinic

Law 590C

Credits: 3

Prerequisite: Evidence

Limited enrollment: 12

A substantial portion of

the work for this course is

done outside the class-

room. Initial interview

and assignment of cases

will occur at the Office of

the Public Defender.

Students will handle two

to three cases over the

course of the semester.

Court appearances and

interviews should be

scheduled to avoid class

conflicts.

Classes will end before the

end of the semester, but

court appearances will

continue until the end of

the semester, or until the

completion of the case.

Each case is actively super-

vised by a supervising

attorney. All major deci-

sions in the case must be

discussed with and ap-

proved by a supervising

Defense Clinic Spotlight

attorney.

Attendance is mandatory.

Any combination of

missed classes, which re-

sult in the student’s inabil-

ity to give competent rep-

resentation to their client,

will result in a “no credit”

grade.

Students are not allowed

to represent defendants in

court if they are currently

working/externing/

interning with the Dept. of

the Prosecuting Attorney.

Prosecution Clinic (cont’d)

Page 3 Clinical Legal Education Newsletter — Spring 2012

three quarters of the semester, but

3-credit students end the class

about 3 weeks before the end of

the semester because they make

fewer courtroom appearances,

they do not participate in the

large mock civil trial which is near

the end of the semester, and they

do not attend 2 to 3 weeks of

classes focused on the mock civil

trial. This clinic requires no more

time than any other 3 or 4-credit

course.

The Prosecution Clinic is a

great course for students who

have the slightest inkling that

they might be interested in any

type of litigation. It gives you the

opportunity to try the litigator's

role. Even if your primary interest

is clearly civil litigation, you will

have the opportunity to do more

witness examination in this crimi-

nal clinic than in any civil clinic. If

you think you have an interest in

being a prosecutor, this gives you

the opportunity to walk in a

prosecutor's shoes and see if it

might really be for you. If you

think you want to be a public

defender, this is the perfect op-

portunity to begin to understand

how the prosecutor will think

about your case. Every year, 2 to 4

students take both the Prosecu-

tion and the Defense Clinics (but

they must be taken in separate

semesters or else there would be a

conflict of interest). And it might

surprise you to learn that every

year one or two students who

never thought they had an inter-

est in doing any criminal litigation

before enrolling in this clinic,

ultimately decide that they would

like to try criminal litigation after

they graduate.

But suppose you are abso-

lutely sure that you never want to

do any litigation, you dreaded

doing moot court arguments, and

you never volunteer in class. This

is the perfect opportunity to en-

hance your personal and profes-

sional skills where your job is not

on the line. You must take this

class! This is a class where you

(Continued from page 2) can really grow. It might even

change your career path.

I myself came to law school

with a Bachelor’s and Master's

degree in business administration

and was sure I was going to be a

corporate lawyer. After some

summer work and a part-time job

with a law firm that did some

criminal work, my first job out of

law school 40 years ago (yikes!)

was as a public defender in De-

troit where I successfully de-

fended clients in jury trials on

charges of armed robbery, rape,

and felony-murder. However, like

most academics, at some point I

decided I would rather "teach it"

then "do it." Teaching a clinic

allows me to have a little bit of

both. I taught criminal defense

clinics for my first 15 years of law

school teaching and I taught my

first prosecution clinic when we

had to cover a hole in the sched-

ule because an adjunct professor

had to withdraw from teaching

what was going to be the first

Prosecution Clinic at the last mo-

ment. At first I was reluctant, but

soon I was delighted. Although

prosecution clinic students do not

get the opportunity to work with

their own individual "clients," I

immediately recognized a prose-

cution clinic could provide stu-

dents with much more courtroom

time than a defense clinic could

and ever since that time I have

been offering a prosecution clinic.

You can view a syllabus for

this course and the current hand-

out materials by visiting http://

w w w2 . h a w a i i . e d u / ~ b a r k a i /

L590b.html, or simply googling

‚John Barkai,‛ going to my home

page, and clicking on the link for

‚Prosecution Clinic."

Although almost all of the

traffic cases that we work on (Stop

sign, Red light, Speeding, etc.) are

not very factually complex and do

not take a lot of preparation (the

officer said, ‚You did not stop.‛

but the defendant said, "I did

stop‛), the advocacy issues can be

very challenging especially since

every judge is different, every

police officer is different, and

every defendant is different. De-

termining factual accuracy and

witness credibility is fundamental

to all types of advocacy. The foun-

dational facts in many of these

cases are very similar to the facts

that a personal injury lawyer will

encounter in an auto accident

cases. Even experienced police

officers who have taken the Prose-

cution Clinic as law students find

this course to be challenging,

enhancing, and fun. The course is

‚credit/no-credit‛ and there is no

final exam. What more could you

ask for in a course?

Live-Client Clinic Updates Entrepreneurship and

Small Business Nine students, in four teams of

2-3, conducted four clinics: two

at the Manoa Innovation Cen-

ter, and two at the Small Busi-

ness Development Center.

Eight clients were assisted,

including, among others, mem-

bers of the hospitality, software

development, and technology

sectors.

Advanced Elder Law The clinic was very lucky to

have 3L Kimberly Torigoe as-

sist with a number of consumer

education sessions, as well as

help prepare for the Spring

2012 Elder Law Clinic, which

will have a focus on Veterans

issues.

The education sessions offered

during the Fall 2011 semester

included the annual ‚Nite of

the Living Will,‛ plus sessions

on health care financing and

veterans issues.

Environmental Law Nine environmental law clini-

cians conducted three commu-

nity workshops on the islands

of O`ahu, Moloka`i, and Maui.

The workshops assisted pro se

defendants in Bartell v. Heirs or

Assigns of Manuela, a quiet title

and partition action that in-

volves ancestral lands on the

east end of Moloka`i. The case

affects hundreds of Native

Hawaiians and the clinic pro-

vided workshops and materials

for defendants who may par-

ticipate in the case without

legal assistance.

Funds from the Office of Ha-

waiian Affairs made this project

possible. These funds will con-

tinue to aid the project by ena-

bling the Native Hawaiian

Rights Clinic to continue the

work of the clinic in the Spring

2012 semester.

The clinic is grateful for the

assistance of a number of ex-

perts who volunteered their

time, including Bill Meheula,

Sheryl Nicholson, Randy Roth,

Calvin Pang, Janet Hunt, Lea

Hong, Luci Meyer, and Xerox.

Family Law The clinic welcomed a new

Lecturer, Tara Arimoto, from

Legal Aid Society of Hawaii, to

join Jennifer Rose in teaching

the clinic. Due to the clinic’s

popularity, ten students were

accepted, rather than the usual

eight students. In addition, the

clinic was offered again in the

Spring 2012 semester.

The students successfully ac-

complished the goals of the

clients while being highly con-

scious and sensitive to the sig-

nificance of domestic violence-

related concerns. One student

was able to help a client in-

crease child support. Three

clients, represented by either

one or two students, were

awarded temporary restraining

orders. Finally, two students

represented the respondent in a

case in which the client’s

spouse was trying to abuse the

restraining order calendar to

obtain custody of the children.

The students completed a full

trial in Family Court and won

the case for their client so she

could have her children re-

turned to her.

Clinical Legal Education Newsletter — Spring 2012 Page 4

2515 Dole Street, Honolulu, HI

96822-2350

(808) 956-7966

law.hawaii.edu/clinical-program

Child Welfare Clinic

Criminal Defense Clinic

Elder Law Clinic Entrepreneurship & Small Business

Clinic

Environmental Law Clinic

Family Law Clinic

Hawai‘i Innocence Project

Native Hawaiian Rights Clinic

Prosecution Clinic

Although completion of our J.D. program requires only two credits from a designated

clinical course, our law students average nine clinical credit hours upon graduation.

At present, externships do not satisfy the clinical requirement for graduation.

Environmental Litigation Seminar

Estate Planning Workshop

Lawyering Skills Workshop

Mediation Workshop

Negotiation + ADR

Pretrial Litigation

Trial Practice

The WSRSL Clinical Program

Medical-

Legal

Partnership

Externships

Simulation

Courses;

Skills-based

but no real

clients

Live

Client

Clinics

avenue,‛ said Hawaii Innocence

Project Attorney William Harri-

son to the Star-Advertiser.

‚There’s usually very little evi-

dence and people have already

gone over it again and again. It’s

very tedious work trying to find

that one proverbial straw that will

help get a conviction overturned.‛

After finally getting its hearing,

the Hawaii Innocence Project

convinced the court in 2009 to

order new DNA testing on the

remaining evidence.

Mr. Jardine’s steadfast mainte-

nance of his innocence was essen-

tial in convincing the Hawaii

Innocence Project to take the case.

The Hawaii Innocence Project

only considers cases in which the

person: (1) is currently incarcer-

ated; (2) is serving a lengthy sen-

tence; (3) was convicted in Hawaii

(although they may be incarcer-

ated elsewhere); (4) has a credible

claim of actual, factual innocence

of the crime(s) for which the per-

son in incarcerated; and (5) evi-

dence potentially exists which

could support the claim of factual

innocence. For the purposes of

applying to the Hawaii Innocence

Project, ‚factual innocence‛

in an interview with the Maui

News. ‚I came away convinced,

although at the time I had no

evidence. I found him completely

consistent. He offered to take a

polygraph. He said, ‘Test the

DNA.’ I said, ‘We will if we can

find it.’ I told him what I tell

everybody. I can’t promise we

can get you out. But we’ll investi-

gate.‛

The prosecution, however,

wouldn’t agree to the DNA test-

ing. As a result, project volun-

teers worked to get a court hear-

ing. Searching for trial tran-

scripts, they discovered that those

from Mr. Jardine’s first and sec-

ond trials had been send to ar-

chives and that only one person

was authorized to search them.

The transcripts of his third trial

could not be located – a court

reporter had to re-create them

after she returned from maternity

leave.

‚You can see why it takes

years,‛ said Prof. Hench in the

same interview. ‚So many people

contributed to this case. It was a

team effort.‛

‚By the time people come to us,

they’ve exhausted every other

means that the person did not

commit or participate in the

crime. It does not include purely

legal defenses such as self-defense

or insanity, and does not include

sentencing, overcharging, or simi-

lar legal issues.

Currently, Professor Virginia

Hench serves as the director of the

Hawaii Innocence Project, with

attorneys William Harrison,

Brook Hart, and Susan Arnett as

its staff. In addition, 12 to 15 sec-

ond and third year law students

assist with hands-on work in a

clinical course offered each semes-

ter. Students are taken through

all steps of a case, from interview-

ing inmates in prison, speaking to

prosecutors, tracking down wit-

nesses, and gathering evidence.

‚It’s an excellent vehicle for stu-

dents to learn how to avoid huge

mistakes as lawyers,‛ said Brook

Hart in a 2007 interview with the

Honolulu Star-Bulletin. ‚We are

looking for actual innocence, but

we are also looking for mistakes

that may have compromised the

fairness of a person’s trial to the

extent that they ought to have a

new trial.‛

Richardson School of Law about

starting a local Innocence Project

in the late 1990s, but the school

lacked the resources at the time.

In 2004, the school reached an

agreement to collaborate with

California Western School of Law

faculty and students and the Cali-

fornia Innocence Project. Around

the same time, Ilima Morrison , an

alumnus of Richardson Law

School, was contacted by Alvin

Jardine’s family for pro bono

assistance in filing a motion to

preserve evidence. That motion

ended up preserving the one

piece of evidence that was finally

able to be DNA-tested – the table-

cloth. Hearing that an Innocence

Project was being started at the

law school, Ms. Morrison helped

Mr. Jardine’s case be in the first

package of applications received

by the project.

After receiving Jardine’s appli-

cation, Professor Virginia Hench,

director of the Hawaii Innocence

Project, flew to see Mr. Jardine in

Mississippi, where he was incar-

cerated. ‚You have to look some-

body in the eye and talk to them

and hear their side of it,‛ she said

(Continued from page 1)