The shocking Dec. 29 birth of a baby to an Arizona woman who has been in a vegetative state for years launched an intense search for the man who raped her. With no specific suspects in mind, Phoenix police obtained a warrant to collect DNA from every male employee at the long-term care facility where the 29-year-old victim has lived since almost drowning at age 3.
While solving the case is certainly important, violating the privacy of every male employee in an attempt to do so raises legal concerns, as UB School of Law Prof. Natalie Ram said on CNN in a Jan. 12 appearance on the “Smerconish” program. While some of the men are being tested voluntarily, the court order requires everyone to comply.
“What the police are doing in this case amounts to a DNA dragnet. This isn’t the first time police have undertaken an effort like this,” said Professor Ram, “to collect DNA from as wide a swath of people as might fit a general description.
“Probable cause is typically required to include individualized suspicion,” she continued. “Here it sounds like the police don’t have any particularized suspicion about any specific individual, and that I think is cause for concern.
Phoenix police officials referred to “reasonable suspicion,” a lower standard than probable cause, in compelling the DNA sample collection. “There isn’t a lot of law on the books — or any really that I’m aware of — that suggests that reasonable suspicion alone is sufficient to compel a DNA sample,” said Professor Ram.
“At what point do the privacy rights of those that you’re forcing to give DNA outweigh the ability to solve this crime?” asked Mr. Smerconish.
“DNA is being collected from an awful lot of people who did not commit this crime, and so we should have concerns about what happens to the DNA of innocent people in this investigation moving forward,” said Professor Ram.
While the rest of us are shoveling snow this weekend, UB School of Law Professor Colin Stargerwill be starting his sabbatical in Wellington, New Zealand, where the temperature is about 70 degrees.
Prof. Starger, his wife, Professor Jessica Shiller, and their two children, ages 13 and 9, will spend the spring semester abroad. Professor Shiller, who teaches education at Towson University, is also on sabbatical, looking at racial and ethnic disparities in the New Zealand educational system.
Prof. Starger will be a visiting research professor at Victoria University in Wellington, developing and preparing to launch a new clinic at UB School of Law in January 2020. The Legal Data and Design Clinic will help students boost their technological literacy so they can use data more effectively in their lawyering, as well as better understand the rapidly changing field of technology in the context of intellectual property, privacy, and other areas of the law.
This fall Prof. Starger will be co-teaching a new course, Coding for Lawyers, with Matt Stubenberg, who is currently associate director of legal technology at Harvard Law School’s Access to Justice Lab. Mr. Stubenberg is the creator of Maryland’s leading expungement website, MDExpungement.com, and worked as IT director at Maryland Volunteer Lawyers Service.
With a new Democratic majority in the House of Representatives, political junkies and opponents of the Trump administration are expecting aggressive oversight of the executive branch. But as UB School of Law Dean Ronald Weich wrote in a Jan. 4 Washington Post op-ed, “congressional oversight is a serious business with a huge impact on government policies.” He then debunked, five common myths about congressional oversight.
Addressing the myth that oversight is largely motivated by partisan score-settling, Dean Weich wrote: “Oversight is not a game. It is a core constitutional function, a cornerstone of the structural checks and balances on which our federal government is built. Congress cannot carry out its constitutional duties without the power to investigate whether the laws it enacts are being faithfully executed and whether the money it appropriates is being properly spent.
“The Supreme Court has repeatedly upheld the exercise of congressional oversight, including the power of committees to issue subpoenas, because oversight is ‘inherent in the legislative process.’ … Far from presidential harassment, oversight is Congress doing its job.”
On the topic of whether executive privilege trumps congressional oversight, Dean Weich argued that executive privilege claims should always be “weighed against Congress’ need to obtain information to carry out its constitutional duties.” In addition, he wrote, the House can withhold funding for executive agencies that fail to comply with legitimate oversight requests.
Of the notion that congressional oversight could “bring down” President Trump, Dean Weich noted that overly aggressive attempts at oversight are not always successful, as in the Clinton administration, and have the potential to backfire politically.
There was much rejoicing last month when Clarence Shipley Jr., 47, was completely cleared of all criminal charges in a Baltimore city courtroom after serving 27 years in prison for a murder he did not commit. The exoneration was the result of investigative work by UB School of Law’s Innocence Project Clinic and the State’s Attorney’s Office Conviction Integrity Unit.
But as Brianna Ford, Innocence Project clinical teaching fellow and staff attorney, wrote in a Jan. 4 Baltimore Sun op-ed, “The state can do nothing to make up for the 27-year gap in his work experience as he is now faced with finding a job. Struggling to meet basic needs is not a burden that exonerees and their families should shoulder after already having endured decades of wrongful imprisonment.
“The Baltimore City State’s Attorney’s Office has apologized to Mr. Shipley, but now the state must do more. The state needs to provide compensation.”
Ms. Ford describes recent efforts by the Maryland legislature to compensate the exonerated, including amendments to legislation that never made it to a Senate vote in last year’s session.
“When the legislature convenes for the 2019 legislative session, compensation should be a top priority,” she argues. “Mr. Shipley waited far too long for his freedom, he shouldn’t have to wait for compensation too.”
Clarence Shipley Jr. is going to have a very special Christmas this year. That’s because on Dec. 18, after spending 27 years in prison — more than half of his life — he was exonerated on all charges against him and left the Baltimore city courthouse a free man.
In front of a packed courtroom, Circuit Court Judge Jeffrey Geller granted a joint petition for writ of actual innocence that was submitted by the University of Baltimore Innocence Project Clinic (UBIPC) and the State’s Attorney for Baltimore City. After waiting anxiously for more than an hour in the back of the courtroom, Mr. Shipley’s family members wept and cried out at the joyous news.
Mr. Shipley, now 47, was convicted of first-degree murder in 1992, based on the testimony of an eyewitness who selected his photo from a photo array a week after the crime occurred. He had been falsely implicated in the murder by a jailhouse informant who provided the information when he was arrested for a series of car thefts in Baltimore city and Baltimore County.
The victim, Kevin Smith, had been shot in the course of a robbery in the Cherry Hill neighborhood. Several members of the community provided information to the police regarding the identity of the killer, Larry Davis, in the days following the murder, but Mr. Davis was never seriously pursued as a suspect by the police.
Mr. Shipley turned himself in to police but proclaimed his innocence from the beginning, saying that he was elsewhere during the shooting. Police did not investigate the alibi, nor did they follow up on additional tips that a different Larry Davis was the shooter. Mr. Shipley was convicted despite testimony from several alibi witnesses and testimony that he was left-handed, while the shooter was right-handed.
Mr. Shipley challenged his conviction repeatedly over the years but was denied relief in the courts at every turn. In 2014, his family hired a retired Baltimore Police Department homicide investigator to review the case. The investigator developed promising evidence and came to believe that Mr. Shipley was innocent.
He then presented the case to Professor Michele Nethercott, of the UBIPC, a joint project of the University of Baltimore School of Law and the Office of the Public Defender (OPD), and an affiliate of the Mid-Atlantic Innocence Project (MAIP). Professor Nethercott, UBIPC staff attorney Brianna Ford, and a MAIP investigator worked the case extensively, developing important evidence of Mr. Shipley’s innocence but lacking the necessary evidence to prevail in court.
Professor Nethercott, who is also an assistant public defender, presented the case to the Conviction Integrity Unit at the Baltimore City State’s Attorney’s Office, which is part of a federally funded partnership with MAIP and UBIPC to collaboratively investigate potential wrongful conviction cases. The CIU investigation developed several new witnesses who proved Mr. Shipley’s innocence and the guilt of Larry Davis, who passed away in 2005.
“Wrongful convictions are not uncommon, but few prosecutors in Maryland are willing work proactively to right these wrongs,” said Professor Nethercott. “I applaud State’s Attorney Marilyn Mosby for acknowledging that wrongful convictions occur and that prosecutors have an obligation to exonerate the innocent, as well as to convict the guilty.”
Baltimore City’s is the only State’s Attorneys’ Office in Maryland with a unit dedicated to identifying and investigating wrongful convictions.
In 2008, OPD and the University Of Baltimore School Of Law established the Innocence Project Clinic to identify individuals like Mr. Shipley who have been convicted in Maryland state courts of crimes they did not commit, and to assist in the investigation and representation of their claims. The Innocence Project Clinic is also affiliated with MAIP, which provided investigative support in Mr. Shipley’s case.
The UB School of Law Innocence Project Clinic is supported by grants and donations from individuals and organizations who believe in its important work. To donate to the UB School of Law clinical program, visit this link. You may specify that you’d like your donation to go to a specific clinic in the Comments section of the form. Thank you!
Family law is an exploding field, with over 40 percent of trial court filings in Maryland relating to family law. In addition, family law cases are becoming extremely complex, as they so often involve social and behavioral issues, individuals in crisis, and efforts at alternative dispute resolution.
To help equip lawyers with the in-depth and cross-disciplinary knowledge they will need to excel in the field, the UB School of Law created the nation’s first post-J.D. Certificate in Family Law. It’s designed for new attorneys just beginning to practice family law, and for experienced practitioners seeking to add this expertise to their practice. Applications are being accepted through Jan. 1, 2019.
The 16-credit, five-course program is administered by the Sayra and Neil Meyerhoff Center for Families, Children and the Courts at the UB School of Law. The program can be completed in 12 months, and classes are offered at times that accommodate work schedules. Hands-on and practical, it offers an interdisciplinary education in all aspects of family law, including child development, financial issues, advocacy and family psychology.
The summer capstone requires students to work through a family law case from start to finish. After completing his capstone this past summer, student Castell Abner said, “This is a great course. This is exactly what I wanted. I am getting my money’s worth. Every lawyer should have this experience.”
The certificate was developed by UB School of Law faculty in close collaboration with an advisory committee of leading practitioners and judges. The law school is widely recognized for the quality and breadth of its family law courses, clinical and experiential offerings, family law center, and the Family Law area of concentration within the J.D. program.
There are an estimated 2,100 people in prison nationwide who were sentenced to life for crimes they committed when they were 17 or younger. States have begun to eliminate sentences of life without parole for juveniles. Others have implemented alternative sentencing programs to give juvenile offenders a “meaningful opportunity” for release.
The changes were prompted by an abundance of scientific evidence about adolescent brain development, as well as U.S. Supreme Court decisions that have been issued in the past eight years, according to a Dec. 10 article in The Intercept. But Maryland has been slow to get on the reform bandwagon. Maryland, California and Oklahoma are the last remaining states in which the governor’s signature is required in order to parole prisoners with life sentences.
With 200 parole-eligible juveniles in the Maryland prison system, juvenile justice advocates — like UB School of Law Professor Jane Murphy, who is quoted in the story — are hoping that the recent re-election of Gov. Larry Hogan might signal an opportunity for the kinds of reforms they believe are long overdue.
“Republicans are presumed to be about law and order, and it can be easier for law-and-order politicians to move on criminal justice reform or grant clemency,” Murphy told The Intercept.
“There’s a lot of pressure on him, but it’s also politically easier for him to [grant parole]. We’re sort of hopeful now, because this is his second term and he’s term-limited. … If this is the end of the road for Hogan, he might be more courageous.”
The pressure on Hogan to take criminal justice reform more seriously is coming from a number of directions, the article notes. A group of about 50 attorneys came together in 2017 to request more protections for juvenile offenders. The Maryland Juvenile Lifer Parole Representation Project offers pro bono legal services to juvenile offenders in jail. “Our goal is not only to provide individual representation, but to unleash these large firm lawyers on this system,” explained Murphy.
The state is also currently defending itself against a 2016 federal lawsuit, brought by the ACLU, that challenges the constitutionality of Maryland’s parole scheme for juveniles. The case remains pending.