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Will Vick’s Sentencing Help to Expand Liability in Animal Law?

As one of the nation’s top animal law attorneys, Boalt lecturer Bruce Wagman has some strong feelings about Michael Vick, the NFL star quarterback recently imprisoned on dog-fighting charges. Surprisingly, the prevailing sentiment is one of gratitude.

"We thank him for what he did," Wagman says of Vick, who was sentenced to 23 months in jail for funding a dog-fighting ring and helping to kill pit bulls that did not fight well. "Michael Vick has done a lot for the animal protection movement by being the felon he is. If someone like you or me committed the same crimes, it wouldn’t receive much attention and millions of Americans wouldn’t be so incensed about dog-fighting."

Bruce Wagman

Vick’s celebrity status and the intense media coverage of his trial brought significant attention to animal abuse. Although Wagman thinks that will help raise the public’s consciousness about dog-fighting, he does not expect it to change existing laws or individual sentencing. But his hope is that the Vick case—and some of its horrifying details—will prompt more states to enact civil liability statutes for animal cruelty.

Currently, North Carolina is the only state that allows civil actions for such offenses. But animal rights advocates, led by the Animal Legal Defense Fund, are using momentum from Vick’s sentencing to push for civil liability elsewhere. In particular, their legislative effort has gained promising traction in California, Illinois, and Oregon.

"We just won a big hoarding case in North Carolina," Wagman says of a disturbing, obsessive practice where an owner continually acquires animals, yet fails to provide minimal standards of care and recognize that such squalid conditions harm the animals. "With civil actions available there, we’re saving hundreds of dogs from abuse and we’re saving North Carolina hundreds of thousands of dollars because the state doesn’t have to prosecute all of these crimes or take care of these animals in municipal shelters. There’s no downside to enacting a law like this."

In addition to his animal law practice at Schiff Hardin in San Francisco, Wagman teaches animal law on a rotating basis at Boalt, Stanford, Hastings, and USF. Wagman, who co-authored the nation’s first casebook for animal law students, will offer his class at Boalt this semester.

Given the fast-changing nature of animal law, Wagman and his coauthors have modified the casebook three times since he began teaching in 1996. His course features an objective survey of laws that apply to animals where their nature as living, feeling beings is considered by the legal system, and weekly lessons from his practice on the front lines of animal protection litigation. Current events and Wagman’s caseload—including illegal farm animal confinement cases in California, hoarding cases in North Carolina, and litigation to protect chimpanzees and gibbons in sanctuary settings—make the class dynamic for students.

"It’s a fantastic course," says 3L Brett Broadwater, who took it as a 1L and is now co-president of the Boalt Hall Animal Law Society. "A real strength is that it surveys so many different areas of law as they relate to animals. Criminal law, trusts and estates and constitutional law all come into play, and (Wagman) does a great job pulling it all together."

Broadwater also credits Wagman’s class for his stellar showing in last year’s National Animal Advocacy Competition, hosted annually by Harvard Law School. Competing against teams from law schools across the country, Broadwater and fellow Boalt student Van Swearingen won the Best Brief award and placed second in oral arguments. Broadwater hopes that the Vick case sparks interest in Wagman’s class, and in animal law as a whole.

"Michael Vick spending nearly two years in jail shows that America is very much concerned about animal abuse and that no one is immune from punishment," Broadwater says. "Media attention on the case has also exposed that certain areas of the law don’t protect animals as well as many Americans think they should."

U.S. law primarily treats animals as property, which means they are evaluated by their market value—much like a table or chair. Wagman says that while removing animals from property status is a worthy long-range objective, animal rights advocates should focus on immediate, attainable goals like enacting civil liability laws in more states.

Calling Vick "the poster child for animal cruelty," Wagman is pleased that Vick’s 23-month sentence will increase awareness and scrutiny of animal abuse. Nevertheless, he has no misconceptions about how much work remains to curb dog-fighting specifically, or animal cruelty in general.

"There are dog-fighting rings in San Francisco, Marin County, and all over the country," Wagman says. "It’s not a regional or cultural activity as some have suggested. Regardless, there’s no cultural excuse for abject cruelty. If such a culture exists, it needs to be changed."

- By Andrew Cohen 1/07/08

O'Brien '91 Appointed Co-Chair of Justice Reform Partnership with Afghanistan

Pictured (L-R): Afghanistan Attorney General Abdul Jabbar Sabit; US Secretary of State Condoleezza Rice; Ambassador Thomas A. Schweich, U.S. Coordinator for Counternarcotics and Justice Reform in Afghanistan; Robert O'Brien, at the podium.

Boalt alumnus Robert O'Brien has been selected to help lead an effort to revitalize Afghanistan's legal system.

Secretary of State Condoleezza Rice recently appointed O'Brien '91 to co-chair the State Department's new Public-Private Partnership for Justice Reform in Afghanistan. With financial and educational assistance from America's legal community, the partnership will use training programs and related activities to help prosecutors, defense lawyers, and judges modernize their practices.

"It will take more than military might to bring stability and peace to that area," says O'Brien, the partner-in-charge at the Los Angeles office of Arent Fox and a former U.S. Alternate Representative to the United Nations. "One of the key foundations for a prosperous and free Afghanistan is having the rule of law in place. Ultimately, that's something the Afghans themselves have to establish. We looked for opportunities they identified to us to assist them in that process."

The State Department is working with the private sector to cover costs of the overhaul, estimated at $500 million over the next five years. U.S. law firms and lawyers contributing $50,000 or more over two years will join senior State Department officials and other interagency partners for a press conference, regular briefings and other events.

Although Afghanistan has made some strides building its legal infrastructure since ousting the Taliban in 2001, major upgrades are still needed, especially in education and professional development. During a ceremony launching the partnership on December 13, Rice said that "establishing a fair, democratic, and transparent justice system in Afghanistan is essential to the country's success," and that "there is much work remaining to be done."

O'Brien co-chairs the partnership with Thomas Schweich, U.S. Coordinator for Counternarcotics and Justice Reform in Afghanistan. Meeting with State Department and Afghan officials, they targeted low-cost, high-impact programs designed to generate lasting change. Partnership leaders are planning an initial visit to Kabul and Jalalabad with some U.S. federal judges in February to meet Afghan attorneys and observe their training.

This summer in Utah, the partnership will lead a four-week program on trial and investigatory techniques for 15 to 20 Afghan prosecutors so these lawyers can return to Afghanistan and share what they learned. Similar programs are being designed for Afghan judges, defense lawyers, and officers of the country's fledgling bar association.

"We expect this to be a national effort on the training front," says O'Brien, whose own work focuses on commercial litigation and domestic and international arbitration. "We expect to draw instructors from the federal judiciary and assistant U.S. attorneys, and we'll reach out to law firms participating with us on a financial basis, asking them to select partners and associates to assist us on the substantive legal issues."

The partnership will also seek to train judges through the Afghan Women Judges Association, expand Afghanistan's Legal Aid Organization, and bolster the newly-created Afghan Prosecutors Association and Afghan Bar Association. The State Department has developed other public-private partnerships in areas such as pediatric AIDS, athletic clinics for underprivileged children in Africa, and land-mine clearing in conflict zones. O'Brien hopes this partnership will bring overdue stability to a disjointed and often dysfunctional legal system.

"This is a unique and special opportunity for American lawyers to participate financially and to lend their expertise," he says. "Their brethren in Afghanistan are putting their lives on the line every day for things that we take for granted. Judges, especially female judges, are not always welcome in that culture. And in many instances, defense lawyers literally risk their lives trying to give people fair trials."

O'Brien's interest in international law began to crystallize at Boalt, particularly during his work with Professor David Caron '83, who he says "has always been a mentor." During O'Brien's one-year term as U.S. Alternate Representative to the United Nations, he assisted then-U.S. Ambassador to the UN John Bolton and represented the nation's interests before General Assembly committees. Now, he faces his most challenging international law endeavor yet.

"It's a real privilege and I feel real honored to participate," O'Brien says. "I hope other law firms recognize that this effort to help establish a democratic, free, stable Afghanistan is critically important to the United States. This is a bi-partisan initiative and deserves support from across the political spectrum."

– By Andrew Cohen 12/28/07


Searching for More Online Privacy? Boalt Expert Says Just Ask(.com) now lets users erase their search sessions.

Privacy advocates are lauding as one of the first online search engines to address growing concerns about protecting personal information. With its new “AskEraser” service, which lets users delete their search activity, the Oakland-based company hopes to set itself apart from larger competitors.

Search engines routinely keep records of the terms that users type in and link them to a computer’s Internet address — sometimes to the actual user. But when users turn on the AskEraser feature, purges their search data within a few hours, the company says. Boalt Hall’s Chris Hoofnagle, a well-known privacy law expert, believes this could ultimately drive’s competitors to offer a similar service.

"AskEraser will make it more difficult for the dominant search engines to retain data for as long as they wish," says Hoofnagle, a senior staff attorney at the Samuelson Law, Technology & Public Policy Clinic and a senior fellow with the Berkeley Center for Law & Technology. "Privacy risks are heightened when data is kept for a long period, and search engines are saying it’s impossible to shorten the retention time. AskEraser will definitely test that assertion."

Although presumably hopes this new feature will help expand its share of the competitive search engine market, it remains unclear whether privacy concerns will influence consumer behavior. The company handled less than 5 percent of all U.S. searches conducted in October, well behind Google (more than 55 percent), Yahoo (20 percent) and Microsoft (14 percent).

"When the Justice Department is requesting search terms, or when a company is posting search terms in a way that makes users identifiable, that erodes consumer trust in the industry," Hoofnagle says. "Many implications flow from being able to identify individuals in putatively anonymous datasets. Researchers want to do their work without implicating individual privacy, companies may find more of their databases subject to privacy law, and consumers may find that a company jeopardizes their privacy by releasing information not considered harmful."

Chris Hoofnagle

AskEraser appears clearly on the main page, and on pages of its specialized services for finding videos, images, news and blogs. Although third parties offer tools to conduct anonymous searches, Hoofnagle says that they are difficult to operate and often slow the search process. By contrast, users can activate or disable AskEraser with a single click.

Recent controversies have heightened debate about online privacy and how websites handle users’ personal information. In 2006, AOL released the search engine queries from more than 650,000 Americans, saying it wanted to make the data available to academics for research. Although the queries were associated only with an ID number, not a computer’s address, reporters could still identify many people who performed the queries.

The social networking site Facebook also sustained a humbling setback when it had to scale back an advertising program that would have informed users of their friends’ buying activities on the Web. More than 50,000 Facebook members objected, prompting the company to apologize and announce that users could disable the feature in question.

online users have complained about retention of their search queries because those records could be those records could be subpoenaed, culled by advertisers, or stolen by computer hackers. Search engine companies claim they need to keep such records for various reasons: Fighting online scams; improving the quality of search results; complying with laws in other countries; and combating "click fraud,'' where advertisers are assessed inflated charges. Google and Microsoft reportedly store personal information for 18 months, while Yahoo and AOL retain such records for 13 months.

"It’s becoming very difficult to assure that a database is anonymous, and there will have to be a reconsideration of what databases can be used for publicly available research," says Hoofnagle, who has testified many times before Congress on privacy matters. "Companies are very concerned about managing their brand in the marketplace, and privacy is a component of that brand. So if you have something like AskEraser, suggesting a brand trying to fix its privacy problem, consumers can see that as empowering."

– By Andrew Cohen 12/20/07

Striking Out? For Prosecution, Convicting Bonds May Not Be as Easy as 1-2-3

Barry Bonds is facing four counts of perjury.
Photo by John H. Kim.

Outside the Bay Area, the public seems eager to convict Barry Bonds in the wake of his federal grand jury indictment. But perjury’s challenging burden of proof—and its familiarity to jurors—could make it tougher for the prosecution than some observers anticipate.

“Perjury carries a high standard of intent to show that a defendant knowingly lied,” says Boalt Hall criminal law professor Jonathan Simon ’87. What’s more, Simon notes that many jurors can relate to being forgetful, too busy or “scatter-brained,” a common defense in perjury cases.

  • “Many people in ordinary life can identify with forgetting, or not being 100 percent certain about something,” he says. “Perjury is a crime of lying, and most of us have some experience with that as opposed to crimes like insider trading that are anchored in experiences quite distant to us.”

Perjury requires proof that a defendant, under oath, knowingly made a false statement as to material facts. The “knowingly” requirement is pivotal: prosecutors must show that Bonds knew his statements were false at the time he gave them. False testimony as a result of faulty memory, misunderstanding, carelessness, mistaken conclusions, or recklessness does not satisfy the “knowingly” element. Although about 90 percent of all federal cases end in conviction, perjury tends to be harder to prove—government data shows that at the end of 2006 only 130 federal prisoners were perjury convicts.

“Most cases that end up in federal court are drug cases, racketeering cases, or other such cases where the underlying behavior often creates a presumption of guilt,” says Simon. “With perjury, you’re more likely to have people who strike us as not stereotypical criminals.”

Bonds was indicted November 15 on four counts of perjury and one count of obstruction of justice, culminating a four-year federal probe into whether he lied under oath to a grand jury investigating steroid use by elite athletes. His allegedly false statements are the basis for the perjury counts, and the grand jury said his alleged pattern of lies represented obstruction of justice. He pleaded not guilty at his arraignment December 7, and his pretrial hearing is set for February 7, although a trial is not expected to begin until late 2008.

Jonathan Simon

Major League Baseball never identified Bonds, the longtime San Francisco Giants star who broke Hank Aaron’s career home-run record this past season, as testing positive for steroids. The indictment consists mainly of excerpts from Bonds’ December 2003 testimony before a grand jury investigating the Bay Area Laboratory Co-Operative (BALCO). It cites 19 occasions in which Bonds allegedly lied under oath, including claims that he never knowingly took steroids provided by personal trainer Greg Anderson. Anderson spent more than 14 months in jail for refusing to testify, and was released soon after the indictment. His attorneys say he will refuse to testify at Bonds’ trial, meaning prosecutors may again ask for his return to prison for contempt.

Even if evidence exists that Bonds received banned substances, the prosecution may need to show they were labeled as steroids or otherwise designated as something illegal. Otherwise, it will likely argue that Bonds should have known these were banned substances, a tougher case to make. The defense is expected to portray Bonds as the target of a witch hunt, stress that he has never tested positive for steroids, and show that he is not in court for committing a substantive crime. Perjury is one of the few offenses where the government creates an opportunity for someone to commit a crime, in this instance by summoning Bonds to testify under oath.

“The government calls someone in largely for the purpose of creating a prosecutable event,” says Simon, Associate Dean of Boalt’s Jurisprudence and Social Policy Program and faculty co-chair of the Berkeley Center for Criminal Justice. “Often there’s only a weak link to the underlying substantive criminal activity. That gives the defense a chance to create an impression that the crime is only real because the government created this scenario. If the prosecution can create a picture of a defendant perjuring to cover up substantive crimes, it becomes more plausible.”

Some legal experts claim that the high conviction rates in federal cases have less meaning when the defendant is a public figure. Celebrities and other public figures often enjoy a greater presumption of innocence, experts argue, because they are seen in a more favorable light than non-famous defendants. But other legal analysts counter that celebrities such as Bonds—with his reputation for surly, defiant behavior—generate disdain among jurors and that his celebrity status could hurt his defense.

Bonds is the highest-profile figure charged in the BALCO probe. In October, track star and Olympic gold medalist Marion Jones pleaded guilty to lying to federal investigators about using steroids.

If convicted of all felony charges, Bonds faces up to 30 years in prison—five years on each of four perjury counts and 10 years on the obstruction of justice count. Although few criminal law experts expect Bonds would serve anything close to that, Simon points out that Jones and Anderson could influence the sentence. Because Bonds pleaded not guilty, a judge may feel compelled to give him more jail time than Jones, who faces up to six months. Simon adds that if Anderson spent 14 months in prison just to protect Bonds, it seems logical that Bonds could be forced to serve a longer sentence.

Although gaining a conviction for perjury is generally tougher than it is for most other crimes, the task is hardly insurmountable.

“As I like to remind my students, prosecutors don’t have to present an MRI that proves knowledge in the brain to prove perjury,” says Simon. “To evaluate what actually occurred in a given situation, jurors take facts and compare them to normative situations of how things usually work in life. The prosecution will try to establish how players normally interact with their trainers to show that Bonds’ claim that he did not knowingly participate in steroid use was implausible. The better they can succeed in showing that a reasonable player would have understood exactly what the purpose of the activity was, the better chance they have to convict him. Bonds is generally thought of as a highly intelligent person who would be expected to understand what other players understood. Here that reputation might hurt him.”

- By Andrew Cohen 12/17/07

Death Penalty Clinic Assumes Leadership Role in Lethal Injection Litigation

Of the 38 states with the death penalty, 37 use lethal injection.

Whether an individual should be executed seems a more vexing question than how that individual should be executed. Yet litigation in more than a dozen states has challenged the administration of lethal injection, prompting the U.S. Supreme Court to consider the constitutionality of an execution method for the first time since 1879.

Of the 38 states with the death penalty, 37 use lethal injection. Boalt Hall’s Death Penalty Clinic has surged to the forefront on this issue, becoming a hub of valuable information for lawyers, journalists, and the public. The clinic created the website in 2005, and it has grown into the country’s top source on the subject, offering a wealth of centralized, well-organized material.

“We started posting information on lethal injection that was useful to different groups and it mushroomed from there,” says Ty Alper, the clinic’s associate director. “It’s really gratifying to know that the clinic is seen as a national resource. That’s certainly a goal of ours, particularly for lawyers who don’t have the resources to represent their clients without our help.”

The clinic has taken a lead role in the lethal injection litigation, particularly since the Supreme Court decided to review Kentucky’s procedures in the Baze v. Rees case. With the exception of a Texas execution that went forward on September 25, 2007, the day the Court granted review in Baze v. Rees, executions have come to a halt as the Supreme Court and state and lower federal courts have all granted stays since then.

Kentucky’s three-drug formula is similar to that used by the states and the federal government. The first drug administered is supposed to anesthetize the inmate. The second drug paralyzes the inmate and prevents breathing. The third drug stops the heart. Petitioners Ralph Baze and Thomas Bowling argue that the Kentucky courts did not consider that the risk of pain was “unnecessary.” They point to the foreseeable risk that, if the anesthetic drug is not properly administered, inmates will experience the conscious agony of suffocation when the second drug is injected and excruciating pain when the third drug is injected. The Supreme Court will review their claims, and decide the constitutional standard for determining whether an execution method violates the Eighth Amendment’s prohibition against cruel and unusual punishment. 

The Death Penalty Clinic filed an amici curiae brief on behalf of inmates who have raised challenges to lethal injection in California, Missouri, Maryland and Florida. According to Alper, the purpose of the clinic’s brief is to “demonstrate to the Court that the prison officials who are responsible for ensuring that the drugs are administered properly are unqualified, untrained, and unreliable.” The Supreme Court is scheduled to hear arguments January 7.

Clinic Eighth Amendment Fellow Jen Moreno developed the web site. And clinic students capitalized on a terrific opportunity to develop their litigation skills by drafting a Supreme Court brief and confronting the media attention the Baze case has garnered. Joy Haviland and Vanessa Ho helped to write the clinic’s brief, Mojgone Azemun and Armilla Staley performed detailed research and cite-checking, and Julia Smith-Aman helped prepare the clinic’s communications resource kit. Although the litigation is legally and factually complex—requiring a significant time commitment and the absorption of vast, technically dense information—clinic director Elisabeth Semel hails the students’ performance as exceptional.

Elisabeth Semel

“This is definitely the hardest that I’ve worked in law school, but it’s gratifying to contribute significantly to such a groundbreaking issue,” says Haviland. “We had an expedited briefing schedule, and there were so many facts and just a few of us working on the brief. But there are no excuses not to do your absolute best, especially when it comes to death penalty litigation where the stakes are so high.”

For Smith-Aman, the flurry of media activity surrounding lethal injection made clear the value of the clinic’s resource kit. “For a case of this size and importance, you definitely need a coordinated effort to pull everything together,” she says. “We made sure everything is sourced, either to a case or news article, so people can get to the core information quickly and find what they need.”

To help ensure that that the Supreme Court was presented with facts from various jurisdictions, not just Kentucky, clinic students scoured the records of lethal injection cases in every state. What they discovered was helpful for their brief, but otherwise quite disturbing.

In Florida, for example, the execution of Angel Diaz took 34 minutes—more than twice as long as normal—and required a rare second dose of chemicals when guards failed to properly insert intravenous needles. In the Ohio execution of Joseph Clark, guards punctured his arm 19 times in an attempt to find a vein. Clark reportedly muttered, “It don’t work,” and after his anesthesia began to wear off added, “Can you just give me something by mouth to end this?” The execution, designed to last no longer than 12 minutes, took more than an hour. In Missouri, it was revealed that a doctor who administered the state’s lethal injections for over a decade had been sued for malpractice more than 20 times—and was disciplined by the State Medical Board for lying about his malpractice history. This same doctor assisted the federal government in its development and administration of lethal injection protocols.

However the lethal injection case is resolved, the Death Penalty Clinic stands poised to continue its leadership role. “Depending upon the Court’s decision,” Semel says, “there are a number of different scenarios that may take place in the states. However, we are committed to our clients, so the clinic is engaged in this issue for the long-term.”

By Andrew Cohen 12/13/07

Dean Edley named Honorable William H. Orrick Jr. Distinguished Chair in Legal Ethics and the Legal Profession

William H. Orrick was a federal judge for 28 years.

Dean Christopher Edley Jr. has been named the inaugural holder of the Honorable William H. Orrick Jr. Distinguished Chair in Legal Ethics and the Legal Profession.

Established by longtime U.S. District Court judge William H. Orrick ’41, with a $1 million gift in 1998, the Orrick Chair supports research, teaching and public activities associated with legal ethics and the profession.

A San Francisco native, Orrick went on to have a distinguished legal career after graduating from Boalt. He served in the Kennedy and Johnson administrations and returned to private practice until he was appointed to the U.S. District Court, Northern District, by President Richard Nixon in 1974

Orrick presided over many high-profile cases, including one that granted female students the same broad protection from sexual harassment in schools as in the workplace. He also ordered the San Francisco Unified School District to stop using race as a factor in assigning students to schools.

Orrick retired in 2002, and died a year later at the age of 87.

Edley joined Boalt Hall as dean in 2003, having distinguished himself as a national leader in civil rights law and public policy on the faculty at Harvard Law School and in the Carter and Clinton administrations. He is the first African-American dean to lead a top-ranked U.S. law school. Edley will hold the chair for five years.

The Orrick Chair is one of 36 endowed chairs established at the law school.


Death Penalty Clinic's Alper wins "Angel Award'' for pro bono work

Ty Alper

California Lawyer Magazine has selected Death Penalty Clinic Associate Director Ty Alper as one of 20 Angel Award winners for his pro-bono work on an Alabama case. The magazine presents the annual award to lawyers who demonstrate a “fierce commitment to pro bono cases.’’ Alper took up the case of Walter Lee Rhone Jr. in 2004, when working as a staff attorney at the Southern Center for Human Rights in Atlanta. Rhone was serving a life sentence for murder in an Alabama state prison for a drive-by shooting death. Alper opened an investigation into Rhone's case, uncovering evidence of widespread misconduct in the trial, the magazine reported. A judge also found evidence that jurors improperly visited the crime scene, and granted Rhone a new trial, in which Alper submitted an amended petition. Rhone, who maintains his innocence, pleaded guilty to manslaughter and was sentenced to time served. Alper brought the case with him to the law school in 2004 and continued to work on it in conjunction with the human rights center.

- Michael Bazeley 12/10/07


Task Force Tackles Delta Crisis, State's Water Woes

The Sacramento-San Joaquin Delta provides water to 25 million Californians.
(Photo by U.S.Dept. of Interior)

Even by the sobering standard of recent environmental news, the Sacramento-San Joaquin Delta crisis is troubling. A new report by the Delta Vision Blue Ribbon Task Force—three of whose seven members have ties to UC Berkeley—concludes that the current system for providing delta water to roughly 25 million Californians is no longer sustainable.

“It’s a daunting issue,” says task force member Richard Frank, executive director of Boalt Hall’s California Center for Environmental Law and Policy (CCELP). “The problems are so multi-faceted and the challenge is so enormous that I’ve joked with several people that this is a professor’s dream exam question.”

Gov. Arnold Schwarzenegger established the task force in February to help address California’s increasingly fragile water status and sustain the delta’s declining ecosystem. In addition to Frank, the task force is chaired by Boalt alumnus Phil Isenberg ’67, a former legislative leader and mayor of Sacramento. It also includes UC Berkeley environmental and civil engineering professor Raymond Seed.

The report—to be released formally next week—urges state and federal officials to evaluate options for a new water-delivery system from the delta to users in the East Bay, San Joaquin Valley, and Southern California. In doing so, it suggests a cooperative statewide effort to conserve water and adopt measures that deter flooding. Among the report’s 12 integrated recommendations are improving the delta’s levees, building a better system to move water to users, decreasing the amount of water that cities take from rivers feeding the delta, and restricting development on area floodplains.

“The key point is that you can’t go through these recommendations, pick a couple and ignore the rest, which some interest groups will be inclined to do,” Frank says. “At the top of our list is restoration of the delta ecosystem and maintenance of a reliable water supply.”

Various environmental factors have created increasingly tight water supplies flowing through the delta. The report’s recommendations include immediate improvements to the delta’s existing infrastructure and operations, and study of improved distribution options to reach better long-range solutions.

CCELP's Richard Frank

Held together by 1,100 miles of aging levees, the delta faces a significant threat of flooding. Because many of the levees were built more than 100 years ago—many from erodible materials—it is susceptible to flooding on par with what New Orleans sustained during Hurricane Katrina. Levee failures could also contaminate the delta’s water supply and jeopardize nearly 400,000 area residents of the floodplain.

“These levees are deteriorating and not maintained to the extent anyone feels is needed,” Frank says. “Beyond that, the water is getting higher, which applies additional pressure on the levees. You also have the impact of climate change, which has caused rising sea levels and more dramatic runoff, and seismic problems as a number of fault lines run through that area.”

Aside from being a source of fresh water for two out of every three state residents—most of whom live in Southern California—the delta is a habitat for species such as salmon, perch, ducks, and geese. To protect such species, the report urges state officials to stop development in floodplains around the delta. Additionally, a large portion of California’s agriculture and more than one-sixth of the nation’s irrigated farmland relies on water that flows through the delta.

The task force first assembled in March and held public session meetings about twice a month. Each member performed different roles, with Frank focusing on water law and land-use planning issues. After taking testimony and obtaining information from government officials, scientists, and other stakeholders for a few months, the task force began crafting its report. Members will meet again in January to begin creating a strategic plan for implementing their delta-management recommendations, with the plan to be submitted by October 31, 2008.

Although Frank joined the task force to help transform California’s most important water delivery system, he knew his involvement would also have a positive impact on CCELP.

“This work ties very nicely into CCELP’s research and policy objectives,’’ he says. “The delta is a microcosm of many key issues that the center is focused on, such as climate change, water allocation in the American west, disaster law, and disaster planning policies. There’s some synergy here, and some long-term benefits that will be great for the center and the law school.”

- By Andrew Cohen 12/4/07

International Human Rights Law Clinic Supports Effort to Fight Poverty in California’s San Joaquin Valley

Download the report here.

A new report by Boalt's International Human Rights Law Clinic received an enthusiastic reception at a meeting last month of 100 community activists, researchers and attorneys in Fresno. The report analyzes how advocates can use international human rights institutions, standards, and advocacy techniques to address polluted drinking water, substandard housing, and barriers to political participation in unincorporated communities in California's San Joaquin Valley.

The Nov. 27 meeting was the first in a new initiative to support residents in developing a strategy to combat the stark inequities they face daily.

Clinic students Cortelyou Kenney ‘09, Melinda Pilling ‘09, Mallika Sarkaria ‘09, supervised by Associate Director Roxanna Altholz ’99, researched and wrote "Human Rights at Home: The rights to housing, water and political participation in San Joaquin Valley unincorporated communities." This research is part of a multi-year clinic project, Altholz said.

“We are developing new ways to use international human rights law to support residents and those working with them as they struggle to vindicate their rights to clean water, adequate housing and political participation,” she said.

Although the San Joaquin Valley is one of the country’s richest agricultural areas, more than 400,000 residents of unincorporated communities experience extreme poverty and few employment opportunities. These communities often lack basic infrastructure, clean water and access to social services. Residents are frequently excluded from political decisions that profoundly impact their day-to-day lives.

The meeting was convened by California Rural Legal Assistance, and included representatives from the Dolores Huerta Foundation, the Community Water Center, and other organizations, as well as community residents.


Sean Reyes 97 Wins First ABA National Outstanding Young Lawyer Award

Sean Reyes ’97

Sean Reyes ’97 has always embraced Utah’s pioneer spirit in 10 years of legal practice since graduating from Boalt Hall. In recognition of his trailblazing achievements advancing minority participation in Utah’s legal system, Reyes recently became the first winner of the American Bar Association (ABA) National Outstanding Young Lawyer award. He was chosen ahead of 24 other nominated lawyers for his legal skills, local and national bar leadership, and dedication to public service.

“To be highlighted among such an outstanding group of people is quite an honor,” says Reyes, who will receive the award this February in Los Angeles. “One of the most important things is it brings attention to the minority communities that I champion, and helps to further their causes. It also gives minority youth someone they can look to and say, ‘If he can do it, I can do it,’ because I came from similar circumstances. It sounds trite, but I tell them ‘If you work hard and stay disciplined, anything is possible. But on your way, you have to give back to others.’ To have the ABA validate that message is very meaningful to me.”

A partner at Utah’s largest firm, Parsons Behle & Latimer, Reyes was one of the state’s first minority attorneys to be named partner at a major practice. During his tenure as president of the Utah Minority Bar Association, the organization received awards from the ABA and Utah State Bar as Reyes convinced many Utah firms to sign a diversity pledge and raised over $100,000 to honor the state’s first 50 minority lawyers and fund scholarships for minority law students. Last year, the Utah State Bar named Reyes its 2006 Young Lawyer of the Year for his diligent efforts to nurture diversity in the state’s legal profession. Minorities comprise 15% of Utah’s residents, but only 3% of its bar members.

Reyes specializes in complex commercial litigation, and is a member of his firm’s employment law department. He is a strong voice for minority businesses in the state, serving as a director of the Utah Hispanic Chamber of Commerce, Vice-President and founding member of the Utah Hispanic Business Leadership Foundation, and board member with the Utah Asian Chamber of Commerce. In addition, Reyes mentors law students of color and coordinates judges and other attorneys to meet with them for mentoring. He also supervised training in a service program that taught English to thousands of immigrants in the Salt Lake City area, and he helped to create several community-outreach programs.

Last year, Utah Business Magazine named Reyes one of the 40 most influential business persons in Utah under the age of 40. The son of immigrant parents—his father is a Spanish-Filipino artist-businessman and his mother is a Japanese-Hawaiian teacher—Reyes grew up in fairly humble circumstances near Los Angeles. His commitment to minority causes grew during a two-year Mormon mission in the barrios of Chicago, and was then further enhanced at Boalt.

“I learned a great deal about public service during law school,” says Reyes, who was an executive board member for Boalt’s Asian Law Journal. “It strengthened my commitment to minority issues, especially having so many classmates who were intent on using their legal training to help others. I carried that commitment into my professional life, and it has been very gratifying to work on community issues that are so important to me.”

With four children and another one on the way, the demanding work schedule of a law firm partner, and his extensive civic obligations, Reyes points to a single reason for being able to juggle it all. “My wife, Saysha,” he says with a laugh. “Honestly, having the greatest wife in the world is the only way it’s possible.”

- By Andrew Cohen 11/29/07

Professor Zimring Receives Sutherland Award

Professor Frank Zimring

Professor Frank Zimring, William G. Simon Professor of Law and Wolfen Distinguished Scholar, received the 2007 Edwin H. Sutherland Award from the American Society of Criminology (ASC) during its annual meetings Nov. 14-17 in Atlanta. The award recognizes outstanding contributions to theory or research in criminology on the etiology of criminal and deviant behavior, the criminal justice system, corrections, law, or justice.

It marks the second straight year that Zimring has been honored by the ASC. In 2006, he received the August Vollmer Award, given to a criminologist whose research scholarship has contributed to justice or the treatment or prevention of criminal or delinquent behavior.

Organized in Berkeley in 1941, the ASC is an international organization with approximately 3,500 members—including practitioners, academicians, and students—from nearly 60 countries. It fosters criminological study, research, and education on the prevention, control, and treatment of crime and delinquency. This includes review of legislation and criminal law practice, and examination of law enforcement, judicial, and correctional systems.

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Another $1 Million Pledge: The Rosalinde and Arthur Gilbert Foundation

Martin Blank '66 and Richard Ziman

As co-directors of The Rosalinde and Arthur Gilbert Foundation, Martin Blank '66 and Richard Ziman have to make some tough calls. One choice became clear when the William and Flora Hewlett Foundation recently announced it would match $1 million private donations to UC Berkeley for endowing new faculty chairs.

"There are many compelling reasons to give to Boalt Hall, but the incentive to make such a large donation was certainly heightened by the Hewlett match," says Martin. "It's a unique opportunity to have $1 million turn into $2 million."

In September, the Hewlett Foundation gave UC Berkeley the largest private gift in its history, $110 million of which comprised the Hewlett Challenge matching grant. Thanks to the Gilbert Foundation and Lance Robbins '72, Boalt has received the first two pledges, a total of $4 million for two new faculty chairs.

The Gilbert Foundation invests in programs that promote education, tolerance, social services, the State of Israel, healthcare and the arts. Its donation for a Boalt chair in Law, Business and the Economy will support the work of a distinguished faculty member, preferably a scholar in the field of Business Law or a related discipline.

Blank and Ziman think private philanthropy must address the decline in state funding for higher education. To support this belief, the Gilbert Foundation has donated to Boalt programs such as the Earl Warren Institute for Race, Ethnicity and Diversity, the Death Penalty Clinic, the International Human Rights Law Clinic, and the Boalt Hall Fund. As a result, it has been on Boalt's "Honor Roll of Donors" and "Dean's Society" list.

Blank received his undergraduate degree from Cal (A.B., 1963). He is a sole practitioner in Los Angeles and a member of the Beverly Hills and Los Angeles County Bar Associations, as well as the State Bar of California. Ziman is the chairman of American Value Partners, a real estate investment company. He received his undergraduate (1964) and law (1967) degrees from the University of Southern California. He is a passionate philanthropist, and has served on the boards of several charitable organizations.

Arthur and Rosalinde Gilbert came from England to Los Angeles in 1949, where they became successful real estate entrepreneurs and committed philanthropists. In 2001, a large portion of the family fortune was donated to The Rosalinde and Arthur Gilbert Foundation in order to continue the couple's philanthropic work.

Human Rights Clinic Seeks to Hold Guatemala Accountable for Forced Disappearances

International Human Rights Law Clinic (IHRLC) students Carmen Atkins '08, Katherine Burdick '09, and Jason Guerrero-Phlaum '09, recently traveled to Washington, D.C. with the clinic's associate director, Roxanna Altholz, to advocate on behalf of Guatemalan survivors of human rights violations.

On October 12, the Inter-American Commission on Human Rights heard both expert and witness testimony about Guatemala's failure to investigate forced disappearances carried out by security forces during that country's civil war. Family members of 28 of 183 victims are represented by the Myrna Mack Foundation (Fundación Myrna Mack), a Guatemalan human rights organization, with the support of the IHRLC. The two witnesses who testified at the hearing were family members of victims.

The victims' names were recorded in a logbook known as the "Death Squad Dossier," which was found among secret Guatemalan military files and which was made public in 1999. It also contains photos of 183 victims, as well as coded references to secret executions for which nobody has been held responsible. (A copy of the logbook is available.)

Guatemalan prosecutors have virtually ignored the logbook despite its evidentiary value. At the hearing, Atkins conducted the direct examination of the expert, Kate Doyle, who testified that the Death Squad Dossier is an authentic document created by Guatemalan military intelligence. Doyle is a Guatemala expert at the National Security Archives and has compiled more than 15,000 declassified U.S. documents on Guatemala.

Witnesses Elizabeth Josefa Andrade and Mirtala Linares testified about their two-decade long struggle to bring those responsible for their family members' disappearances to justice. Burdick and Guerrero-Phlaum prepared the witnesses' written affidavits and oral testimonies. "Attending the hearing made abstract concepts about human rights real," said Guerrero-Phlaum.

The families are asking that the commission rule on the complaint and hold Guatemala accountable for the disappearances of their loved ones and for its failure to investigate and prosecute the perpetrators. "If Guatemala is serious about human rights, it must prosecute those responsible for these crimes," says Altholz.

(A video of the Death Squad Dossier hearing is available and listed under Case 12.590 -José Miguel Gudiel Alvarez and Others)

After the hearing, Burdick said, "The experience reminded me of why I wanted to be a lawyer in the first place, and it will make me a better advocate."

BCCJ Appoints Two Prominent Academics to its Research Team

Anthony Braga

With the recent appointment of crime experts Anthony Braga and Tracey Meares, the challenge of crafting strategies to combat the soaring rate of urban violence just got a bit easier for the Berkeley Center for Criminal Justice (BCCJ).

"Anthony and Tracey are extremely well-respected academics who have had great success working with practitioners from both law enforcement and the community to reduce street violence," says BCCJ Executive Director David Onek. "The Berkeley Center for Criminal Justice is thrilled to bring them on board."

By adding Braga as a Senior Research Associate and Meares as a Senior Research Fellow, BCCJ will further its mission to research, develop, and advance innovative criminal and juvenile justice law and policy approaches through collaboration with scholars, policymakers, and practitioners.

Braga, recently named Chief Policy Advisor to the Boston Police Commissioner, is a Senior Research Associate at Harvard University's Kennedy School of Government. His research focuses on developing problem-oriented policing strategies to prevent gang violence, disrupt illegal gun markets, and address violent crime hot spots. Braga has served as a consultant on these issues to police departments in numerous cities—including Los Angeles, New York, Minneapolis and Baltimore—as well as the U.S. Department of Justice and the U.S. National Academy of Sciences. He was a Visiting Fellow at the U.S. National Institute of Justice and teaches in the Police Executive Research Forum's Senior Management Institute for Police.

"Anthony has been a critical component of every strategy we've put in place in recent years," says Boston Police Commissioner Ed Davis, whose department has worked with Braga since the 1990s. "He has developed effective strategies to intervene in gang feuds, and his work has had a huge effect on reducing our youth homicide rates."

Tracey Meares

Meares is a professor at Yale Law School—the first African-American female tenured professor in its history. Previously, she was the Max Pam Professor of Law and Director of the Center for Studies in Criminal Justice at the University of Chicago, where she joined the law faculty in 1994. Meares is also a Senior Research Fellow at the American Bar Foundation. She has worked closely with law enforcement and community groups in Chicago as part of Project Safe Neighborhoods, a national program to reduce gun violence. Her research for this program focuses on the social marketing of deterrence and social norms messages through offender notification meetings.

"Tracey has been a blessing to our operation," says Eugene Williams, Chief of the Organized Crime Division for the Chicago Police Department. "She makes sure all considerations of the neighborhood are put at the forefront, not just law enforcement's. Everything that we do in Project Safe Neighborhoods is vetted through her, and she has been instrumental in Chicago having one of the most effective initiatives in the country."

Braga and Meares will assist BCCJ's intensive partnership with city officials and community agencies in San Francisco to combat street violence in selected neighborhoods, and will help BCCJ explore partnerships with other Bay Area cities in the months ahead. Braga, Meares and Onek are already hard at work researching and writing a paper on the nature of street violence in San Francisco, lessons learned from other jurisdictions about reducing street violence, and the current partnership-based violence reduction efforts in San Francisco. Onek will present the paper at a community policing conference that BCCJ is co-hosting with the Australian National University in December in Canberra, Australia.

Dean Christopher Edley says that the appointments of Braga and Meares "are a real coup for Boalt and a testament to the tremendous excitement that the Berkeley Center for Criminal Justice has generated in the field under David Onek's leadership."


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