Schnader Successfully Obtains Complete Acquittal on Murder Charges Against William J. Barnes
After a week-long trial, Schnader Harrison Segal & Lewis LLP successfully obtained a full acquittal on murder charges brought against the Firm's pro bono client William J. Barnes. Barnes was charged with causing the death of Philadelphia Police Officer Walter T. Barclay in 2007, 41 years after Barnes had shot and partially paralyzed Barclay.
Schnader took the matter on a pro bono basis and committed significant resources to fighting the charges and ensuring that Barnes mounted the best defense possible. Led by attorneys Sam Silver, Bruce Merenstein, and Nilam Sanghvi, the Schnader team also included attorneys Joseph Anclien, Leah Snyder Batchis, Chris Haaf, Jeremy Hekhuis, Kate Kleba, Julie Randolph, Paul Safier, and Emily Tetzlaff, and paralegals Adrienne Horn and Barbara Schramm. The unusual case involved numerous complex medical issues and required the Schnader team to investigate, locate, and review thousands of medical records from dozens of health care providers. The Schnader lawyers were able to track down medical providers who had treated Barclay decades earlier, as well as key medical records, that the prosecution had failed to uncover.
The case began in 2007, shortly after Barclay died at the age of 64, when Barnes was arrested and charged with Barclay's murder, based on Barnes's conduct more than four decades earlier. The prosecution alleged that the 1966 shooting that left Barclay partially paralyzed could be directly linked to the urinary tract infection and subsequent sepsis that ultimately caused his death many years later.
Schnader attorneys never disputed that Barnes shot and seriously injured Barclay. However, in the time since the shooting, Barclay had been involved in three auto accidents and two wheelchair accidents, which had a significant impact on his overall physical condition, including his urologic functioning. Barclay also experienced significant neglect and abuse from 2001 to 2003 at the hands of his live-in caregivers. During that time, the caregivers kept Barclay confined in his room, underfed him to the point that he developed scurvy, and left him unwashed and sitting in his own waste. As a result of that treatment, Barclay contracted numerous bedsores and experienced a substantial downturn in his overall health. Because of the passage of 41 years and the significant events that occurred between the time of the shooting and Barclay’s death, the Schnader lawyers argued that there was no "unbreakable chain" of causation linking the gunshot to the fatal infection that took Barclay's life.
The jury was charged with determining whether the gunshot could be linked to Barclay's death. If found guilty of first or second degree murder, Barnes would have faced an automatic life sentence. After six hours of deliberations over two days, the jury acquitted Barnes of all charges.
Barnes currently remains incarcerated on a technical parole violation for being in possession of a cell phone and car keys at the time he was picked up and charged with Barclay's murder. He has now served close to three years in prison for this technical violation. The Schnader team continues to represent Barnes and is working to obtain his release, so that the jury's verdict is not thwarted.
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Schnader Secures New Trial for Man on Death Row Almost 20 Years
A team of Schnader attorneys led by Samuel W. Silver and Bruce P. Merenstein secured a significant victory when the Third Circuit vacated the conviction of a man who had once been sentenced to death, and ordered the Commonwealth of Pennsylvania to release him or give him a new trial. In an opinion filed by the U.S. Third Circuit Court of Appeals on April 18, 2006, the court found that Florencio Rolan – who was convicted of murder almost 22 years ago years ago and spent 19 years on death row – received ineffective assistance of counsel at his original trial, and therefore his appeal for a new trial should be granted.
"We are very gratified that the court recognized that Mr. Rolan did not receive adequate representation when his case was originally tried, and that he will finally have an opportunity to have a fair and impartial trial," said Samuel Silver, who is chair of Schnader's Litigation Services Department and has led the Rolan team since Schnader took on the case more than a decade ago.
The Third Circuit's decision was just the latest chapter in the case involving Florencio Rolan, who was accused of first-degree murder in 1983. The Schnader team has been handling Mr. Rolan's appeal from his murder conviction since 1994, when he was days away from being the first individual to be executed by the Commonwealth of Pennsylvania in more than 30 years. In the 11 years since the Pennsylvania Supreme Court issued a last-minute stay order that saved Mr. Rolan from execution, dozens of Schnader lawyers and staff have worked tirelessly on his state and federal appeals, successfully demonstrating the invalidity first of his death sentence and then of his underlying conviction.
In 1997, Schnader succeeded in getting Mr. Rolan's death sentence vacated and a new sentencing trial ordered by a state court, which determined that Mr. Rolan's original trial counsel was ineffective in defending Mr. Rolan at the penalty phase of his 1984 trial. In 2003, the second sentencing took place in Philadelphia, with a Schnader team led by Silver defending Mr. Rolan. The jury in that case, which heard from Mr. Rolan and many other witnesses not called at the original trial, unanimously found that Mr. Rolan should not be sentenced to death. The jury's unanimous decision ensures that, if there is a new trial, Mr. Rolan cannot be sentenced to death for the 1983 shooting. Nine months after the life sentence was imposed, Mr. Rolan was finally moved from death row, almost 20 years after his death sentence was first imposed.
Having ensured that Mr. Rolan would not be executed, Schnader then pressed a habeas corpus petition in federal court to seek a new, fair trial for Mr. Rolan. In 2004 the Court granted Mr. Rolan's habeas corpus petition, vacating his conviction and ordering a new trial, on the ground that his trial counsel was ineffective. The Third Circuit's decision upholds the District Court's decision. In the opinion, the court noted that, "[a]lthough the decision to forgo a self-defense claim is of the type that may be entitled to a presumption of validity, [trial counsel's] decision not to present the defense cannot be accorded the normal deference to strategic choices because it was uninformed." The court further found that Mr. Rolan's original conviction was "only 'weakly supported by the record'".
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Judge Dismisses Case Against Couple in New Hope, Pennsylvania
On October 19, 2004, a Schnader team achieved a pro bono victory in a case involving a gay couple in New Hope, Pennsylvania. Twelve Pennsylvania state representatives sued the couple for attempting to procure a marriage license. In an unprecedented action with serious First Amendment implications, the legislators (joined by one Pennsylvania corporation) sued these private citizens (who themselves never filed suit on their own) in an action seeking a declaratory judgment that Pennsylvania's marriage law (already deemed constitutional) was, indeed, constitutional. Bucks County Judge Mitchell S. Goldberg dismissed the lawsuit and held that there was no actual controversy before him and that the legislators lacked standing to bring the lawsuit. The ruling is important because similar "preemptive strike" litigation against private citizens was likely contemplated by the plaintiffs' legal counsel, the Alliance Defense Fund, which had one of its lawyers from Arizona come to Doylestown to argue the case opposite Schnader.
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Death Sentence of Pro Bono Client Vacated in Collaboration with Dechert LLP
On April 30, 2004, the Philadelphia County Court of Common Pleas vacated the death sentence of Simon Pirela, a mentally retarded prisoner who was born in Puerto Rico and who has been on Pennsylvania's death row since 1983. Mr. Pirela has been a pro bono client of both Schnader and Dechert LLP. This decision was one of the first to apply the U.S. Supreme Court's 2002 decision in Atkins v. Virginia, 536 U.S. 304 (2002), which categorically barred the execution of mentally retarded individuals.
The decision in Commonwealth v. Pirela, issued by the Honorable Carolyn Engel Temin, came after a 10-day evidentiary hearing at which Mr. Pirela was represented by Schnader partner Stephen J. Anderer, Ph.D., Dechert partner George G. Gordon and then-Dechert associate Aline Fairweather, as well as Robert Brett Dunham of the Defender Association of Philadelphia's Capital Habeas Corpus Unit. Also on the Schnader legal team that has been representing Mr. Pirela are partner Samuel W. Silver, attorney Anne E. Kane, and paralegal Tracey L. Dopson.
During the hearing, Mr. Pirela's legal team presented extensive evidence regarding his brain damage and associated mental limitations, including images of Mr. Pirela's brain prepared through positron emission tomography ("PET") scans, and the results of a neuropsychological evaluation of Mr. Pirela by a nationally recognized expert in the evaluation of Spanish speakers. Because Mr. Pirela does not speak English and has been incarcerated in a very restrictive setting for 20 years, the assessment of his intellectual and adaptive functioning presented particular challenges that were overcome by his defense team.
Over the past several years, Schnader and Dechert have represented Mr. Pirela separately in two first-degree murder cases. In 2000, a Schnader team led by Mr. Silver and Mr. Anderer successfully obtained a life sentence for Mr. Pirela in one of the cases, Commonwealth v. Morales. The firms' joint representation of Mr. Pirela at his recent hearing was the natural outcome of the firms' close cooperation in their efforts to prevent Mr. Pirela's execution, including sharing the significant expense for the PET scan and MRI of Mr. Pirela's brain.
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Key Player in U.S. Supreme Court Death Sentence Reversal
The Honorable Timothy K. Lewis played a key role in the reversal of the death sentence for Texas inmate Delma Banks in the high-profile decision by the U.S. Supreme Court issued in Banks V. Dretke on February 24, 2004. The Court spared Banks' life due to established prosecutorial misconduct. Judge Lewis was one of three former federal judges (including former FBI Director, Judge William S. Sessions), along with a former U.S. attorney, who filed the amicus brief, arguing against the imposition of capital punishment. In addition to reversing the imposition of the death penalty, the Supreme Court remanded the case to the court of appeals for a detailed review on the question of guilt.
George H. Kendall, Esq., of Holland & Knight LLP, who successfully argued the case, acknowledged the importance of the amicus brief that was filed in support of the motion to stay execution. Judge Lewis had also prepared Kendall for the oral argument through mooting sessions at the Georgetown Supreme Court Institute. The stay of execution had been granted 10 minutes prior to Banks' scheduled execution.
Justice Ruth Bader Ginsburg's opinion was joined by Chief Justice Rehnquist and Justices Stevens, O'Connor, Kennedy, Souter and Breyer. The Court remanded the case to the Fifth Circuit for review on the question of guilt in this death case out of Texas.
The case marks the first time that former federal judges have banded together to persuade the U.S. Supreme Court to overturn a death sentence.
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Victory in Death Penalty Resentencing Case
On May 2, 2003, a team of Schnader lawyers, led by partner Sam Silver, won a life sentence at a resentencing trial for client Florencio Rolan, who had been on death row since 1984. Mr. Rolan, who is 46 years old, is incarcerated at Graterford State Prison. The case was tried before a Philadelphia jury over two weeks, and Schnader won a unanimous verdict for life. Other team members included Stephenie Yeung, Deidre Gray and Schnader alumni, Joanne Noble.
"This achievement is certainly something that the Firm is proud of," said Schnader Chairman Ralph G. Wellington. "It is rare to be able to turn a case around like this. The Rolan case marks the second time that Schnader has done it in recent years. In both cases, our lawyers committed years of time and effort to the cause, and both times their dedication resulted in unanimous decisions by Philadelphia juries," he added. "In these cases, our lawyers have again demonstrated the commitment of our Firm to core values at issue in our legal system. I am proud to be associated with legal professionals who, by their actions on behalf of some of the most unpopular clients, have vindicated the rights -- and literally saved the lives -- of people who would otherwise have been forgotten," said Mr. Wellington.
The Rolan victory follows on the heels of the January 2000 resentencing trial win by Schnader lawyers, again lead by Sam Silver, on behalf of death row inmate Simon Pirela.
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Third Circuit Draws on Schnader's Amicus Brief in COPA Decision
On March 6, 2003, the U.S. Court of Appeals issued its decision holding the Child Online Protection Act (COPA) unconstitutional, ACLU v. Ashcroft, 332 F3d 240. By its terms, COPA prohibited knowingly publishing material that is "harmful to minors" on the Web for a commercial purpose. The Third Circuit Court of Appeals held that COPA was not narrowly tailored, and did not use the least restrictive means to achieve its ends. The Court of Appeals concurred with the analysis presented by the friend-of-the-court brief filed by Schnader Harrison Segal & Lewis LLP, and cited extensively to the arguments made in that brief.
As part of Schnader's longstanding tradition of pro bono representation and constitutional litigation, the Firm filed its brief to emphasize how COPA is overbroad in criminalizing material that has First Amendment value for adults. In his Opinion for the Court, Third Circuit Senior Circuit Judge Leonard I. Garth cited to the 's brief for examples of how COPA is invalid because it prevents adults from obtaining access to speech on the Internet that has First Amendment value to them, even though that same speech may be inappropriate for children.
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Third Circuit Ruling Clarifies Exhaustion Requirement of Prison Litigation Reform Act
In late November 2002, Bruce Merenstein and Nancy Winkelman won a landmark ruling from the U.S. Court of Appeals for the Third Circuit that clarifies the meaning of the "exhaustion" requirement of the Prison Litigation Reform Act (PLRA). Bruce and Nancy handled the appeal on behalf of a prisoner, Samuel E. Brown, who alleged that he had been severely beaten by other prisoners, that prison officials had shown deliberate indifference to serious medical needs and that they had unlawfully retaliated against him for filing a grievance asserting inadequate medical care. All of Mr. Brown's claims had been dismissed in the District Court. Bruce handled the oral argument before the Court of Appeals.
The Court of Appeals initially noted that there were "unresolved factual questions" as to whether prison officials had properly informed Brown as to the status and effect of internal administrative investigations. In addition, in a critical portion of its opinion addressing what "exhaustion" of remedies means, the Court observed that a "futility" argument, standing alone, is not sufficient to satisfy the administrative exhaustion requirement. At the same time, however, the Court declared that "[t]he PLRA does not require exhaustion of all remedies. Rather, it requires exhaustion of such administrative remedies as are available." (emphasis added). The Court of Appeals held that "salient questions at this stage are whether Brown was entitled to rely on instructions by prison officials that are at odds with the wording of [the prison policy statement] and whether these instructions rendered the formal grievance procedure unavailable to him..."
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Schnader Team Co-Counsels for Extraordinary Acquittal for Former Death Row Inmate
A team of Schnader lawyers, led by Paul Titus and including Michael Kalata and Schnader alumnus Perry DeLay, working with Thomas Leslie of the New Castle bar, won an extraordinary victory in May 2002 - obtaining an acquittal for their client, Thomas H. Kimball, in a new trial in Lawrence County, Pennsylvania on first-degree murder charges.
Kimball had been convicted of first degree murder and sentenced to death in 1996 for the stabbing deaths of Bonnie Dryfuse, her two daughters and her niece, who were just 7, 6 and 4-years old, respectively, at the time of their deaths. The incident took place at a mobile home near New Castle in June 1994. Following Kimball's conviction in 1996, Kimball spent four years on death row before he won the right to a new trial when the Pennsylvania Supreme Court ruled two years ago that there had been evidentiary errors at the original trial.
Kimball had been represented at the original trial and on appeal by Thomas Leslie, who was court-appointed. Following the Supreme Court order for a new trial, Leslie reached out to the Firm because he did not have the resources he believed were necessary to succeed at retrial. After reviewing the record and discussing it with other Schnader lawyers, Paul Titus became convinced that Kimball had not committed the murders. At that point, Michael Kalata and Perry DeLay agreed to assist. While Titus is highly-experienced and is a member of the American College of Trial Lawyers, he readily acknowledged that he had no death penalty trial experience, but felt compelled to assist to the extent he could.
Kimball, who was a known drug abuser and had several prior convictions, was convicted after an eyewitness allegedly placed him near the crime scene, and another death row inmate claimed Kimball had confessed to the crime while in prison. The evidence gathered for the retrial called both of these key points of evidence into question. While Thomas Leslie served as lead counsel, the Schnader team handled briefing and motion practice and obtained court-appointed medical and scientific experts to assist in preparing the defense.
Paul Titus suspected that Kimball was innocent in part because there was virtually no physical evidence to implicate him. Photos of the crime scene showed the murders involved numerous stabbings and a particularly significant struggle. At that point, Paul Titus uncovered a key piece of medical evidence that had previously been overlooked. Kimball is a hemophiliac, and by sheer coincidence had checked into a drug rehabilitation center the day after the murders, and a routine full physical showed he had no bruises or marks on his body.
DNA evidence also proved critical. There was no evidence of Kimball's DNA anywhere at the crime scene; however, the DNA of the victim's estranged husband was found on several washcloths in the bathroom. Moreover, the estranged husband was at the crime scene on the day of the murder and, according to testimony, was the person who found the bodies. In addition, an evidence photo taken the day of the murder by police showed that the estranged husband's hands were covered with cuts and bruises. Paul Titus presented this and other key medical evidence to the jury.
After twelve hours of deliberation, the jury returned a unanimous vote of not guilty. Kimball, who had spent six years on death row, is now home with his family. As Paul Titus put it: "We were all convinced of Kimball's innocence, we just had to find some hard evidence to prove to the jury what we already knew."
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Three Victories in the U.S. Court of Appeals for the Third Circuit
In a remarkable set of developments, Schnader attorneys won victories during the month of June 2002 in three different pro bono appeals before the U.S. Court of Appeals for the Third Circuit.
Grayson v. Mayview State Hospital
In Grayson v. Mayview State Hospital, Denny Shupe, Nancy Winkelman and Schnader alumna Sharon Fenick won a victory when the Third Circuit reversed the district court's decision to dismiss a pro se complaint for failure to state a claim where the trial court did not grant the pro se plaintiff leave to amend his deficient complaint before dismissal. The plaintiff, Norman Grayson, had alleged that the defendants were deliberately indifferent to his medical needs in violation of the Eighth Amendment.
The appeal involved an interpretation of the Prison Litigation Reform Act (PLRA) enacted by Congress in 1996. Prior to the PLRA, standard practice in the Third Circuit and other circuits across the country, based on Rule 12(b) of the Federal Rules of Civil Procedure, was that where a plaintiff filing pro se (i.e., without a lawyer) and in forma pauperis (i.e., without Funds) had not met the pleading requirements, the district court must inform the plaintiff that he could amend his complaint within a set period of time, unless amendment would be inequitable or futile. The district court had concluded that Grayson's claims had possible merit if pled adequately, but nonetheless did not grant Grayson leave to amend.
The defendants argued that the provision of the PLRA at issue, 42 U.S.C.S. 1915(e)(2), had overturned this requirement. The Court of Appeals, in an opinion authored by Judge Ambro interpreting this provision for the first time, held that the provision did not "alter the legal landscape" and that Congress had not intended that "harsh, and seemingly pointless, result." The Third Circuit concluded that the PLRA did not provide a basis for departing from the basic rule, reflecting in Rule 12(b)(6) and Supreme Court decisions, that a plaintiff whose complaint fails to state a cause of action should be given leave to amend unless doing so would be inequitable or futile.
In a footnote, the Third Circuit declared: "We acknowledge with appreciation the able and zealous pro bono representation of Grayson by Nancy Winkelman and J. Denny Shupe."
Smith v. Mensinger
Four days later, in Smith v. Mensinger, Deena Jo Schneider and Matt Holmwood won a victory when the Third Circuit reversed a grant of summary judgment for certain corrections officer defendants in a case in which the plaintiff, Carl M. Smith, alleged that he was subjected to a physical beating while handcuffed and asserted due process and Eighth Amendment claims. In an opinion authored by Judge McKee, the Third Circuit affirmed the district court's grant of summary judgment on the due process claim but reversed on the Eighth Amendment claim, holding that the district court erred in focusing narrowly on the extent of Smith's injuries, and that the "pivotal inquiry" in reviewing an excessive force claim is "whether force was applied in a good-faith effort to maintain or restore discipline or maliciously and sadistically to cause harm," citing a number or prior decisions. The Third Circuit also held that those defendants who had not actually beaten Smith could be liable under the Eighth Amendment because they had failed to intervene.
Montgomery v. Pinchak
Later in June, the Third Circuit issued its opinion in Montgomery v. Pinchak. In this case, Carl Solano and John Mullen represented a prisoner, Jeffrey Montgomery, with a cardiac and other medical conditions who claimed deliberate indifference to serious medical needs based on the alleged failure to provide a previously-prescribed cardiac catheterization and cardiac and other medications, and who had requested appointment of counsel. Montgomery appealed both the grant of summary judgment and the denial of his motion for appointment of counsel. The Third Circuit, in an opinion authored by Judge Fuentes, vacated and remanded the decision, ruling that the district court had abused its discretion by failing to appoint counsel. After an extensive review, the Third Circuit found that the circumstances of the client's case, including the potential merit in fact and law, and the difficulties in presenting the case, satisfied five of the six factors previously enunciated by the Court for appointment of counsel.
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Hague Convention Victory
In Spring 2001, the Family Law Department achieved a major victory under the Hague Convention, reuniting two children with their mother in Germany. Albert Momjian was contacted by the director of the National Center for Missing and Exploited Children, headquartered in Washington, D.C., and asked to represent a mother whose children were wrongfully taken from their home in Furth, Germany, by their father, who is an American citizen.
Germany rarely returns children who are abducted to Germany from other countries, even though Germany is a "contracting state" to the Hague Convention, as is the United States. The Firm agreed to assist the mother on a pro bono basis. Initially, the legal team of Albert Momjian and Dori Green secured an ex parte order from Judge Petrese Tucker of the U.S. District Court in Philadelphia, directing federal marshals to take the children into temporary custody pending a hearing. Upon learning of the order, the father immediately went into hiding, and then claimed he was in Florida, which was not the case. When the father failed to attend the hearing in federal court, Judge Tucker issued a bench warrant for his arrest.
Eventually, the father retained counsel and contacted Albert Momjian, after which the father turned the children over to the mother, who came up from Virginia where she had been staying pending the final hearing. The father argued that the mother had consented to the removal of the children from Germany to Pennsylvania and, second, that the return of the children to the mother would expose them to a grave risk of harm. Dori Green prepared the pleadings and the pre-hearing submissions.
A few days later, Judge Tucker issued a memorandum and order directing that the children be returned to Germany and awarding the mother temporary legal and physical custody pending a final custody hearing to be determined under German law.
The National Center had contacted Albert Momjian and requested the Firm's assistance not only because the children had been abducted and taken to United States in violation of a German court order, but also as a demonstration to the German courts. The hope was that a ruling by a U.S. court enforcing the German court order would prompt greater reciprocal cooperation by German courts in enforcing orders of American courts. The ruling in this case, the result of an intensive effort within a very short time frame, achieved precisely the result that the National Center had been seeking.
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Death Penalty: Schnader Lawyers Obtain New Sentencing Trial, Then Win Unanimous Jury Verdict on Resentencing
In January 2000, Schnader lawyers led by Sam Silver won a resentencing trial in a death penalty case before a Philadelphia County jury. The victory culminated efforts on behalf of Simon Pirela begun years earlier by other Schnader lawyers. Mr. Pirela was convicted of first-degree murder and sentenced to death more than 15 years ago.
In the early 90s, Schnader lawyers and summer clerks combed the trial and appellate records to identify the key issues meriting consideration and prepared post-conviction petitions and briefs. The post-conviction review involved not only constitutional claims but also byzantine procedural issues. After the post-conviction trial court dismissed the petition, Jim Crawford (who headed Pennsylvania's American Civil Liberties Union for many years) and Joe Lukens briefed the appeal to the Pennsylvania Supreme Court, focusing on trial counsel's failure to present the original jury with substantial evidence of mitigating circumstances, as required by law. Although not persuaded by this argument, the Supreme Court ordered a new sentencing trial because the prosecutor had committed misconduct by making improper remarks in his closing argument during sentencing.
The ruling set the stage for January's trial, the culmination of many months of hard work by a new Schnader team. Sam Silver served as first chair and Steve Anderer as second chair. Joe Lukens synthesized use of prior and current testimony and witnesses.
Steve, who is also a Ph.D. psychologist, was responsible for developing and presenting evidence supporting the theme that Mr. Pirela should not be executed because he is brain damaged. Dramatic evidence was obtained through the use of MRI and PET scan technology that visibly demonstrated Mr. Pirela's brain damage. Steve took experts through this evidence at trial with meticulous attention to detail.
Anne Kane performed key tasks both in court (sitting "in front of the bar" with Sam and Steve) and out, coordinating the out-of-court research and briefing. Anne argued and won several pivotal motions, keeping out certain prejudicial evidence. Anne also prevailed in arguing that the prosecution could present only two "aggravators." This proved crucial, as the jury ultimately found two aggravators, three "mitigators" and that the mitigators outweighed the aggravators. This last finding meant that Mr. Pirela's sentence should be life in prison, not death.
Joanne Noble played a key role, doing research, reading many transcripts of prior testimony by prosecution witnesses - which Sam Silver was able to use in damaging the credibility of these witnesses at trial -- and writing witness examinations and briefs. Paralegal Tracey Dopson kept the team organized and focused, and prepared witness binders and other materials so quickly that the rest of the team had trouble keeping up with her. The twelve-person jury unanimously decided that life, not death, was the proper penalty for Simon Pirela.
This case exemplifies the extraordinary benefits of pro bono work and the Schnader approach to pro bono. Perhaps most importantly, this team worked as one throughout the pretrial and trial, meeting frequently to exchange ideas and make critical decisions as a group. Almost every strategy decision was the result of a roundtable discussion, right on down to the theme of closing argument. As a result, not only did this team effort produce a first-rate product and a favorable result, but it produced better lawyers, professional colleagues and friends as well.
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Federal Judge Orders New Trial After Finding Ethnic Stereotyping
In April 2000, Elizabeth Ainslie won an important victory in U.S. District Court in Philadelphia for a habeas petitioner who had been tried in absentia on charges of illegal fortune telling and theft by deception, and then sentenced to 15 to 30 years in prison. In a memorandum and order, Senior Judge John P. Fullam held the petitioner's trial had been constitutionally defective after finding that the prosecutor, the trial judge, and the petitioner's own trial counsel engaged in numerous instances of "ethnic stereotyping." Judge Fullam ordered that the client be granted "a new trial, consistent with constitutional safeguards, within 120 days [or] be discharged from imprisonment."
Liz argued, among other things, that her client had been denied his right to a fair trial when he was tried in absentia even though he had appeared in court for arraignment shortly before. Liz maintained that prosecutors fell far short of what is required for a trial in absentia, since they had not shown they used their best efforts to apprehend the client. Judge Fullam opined that it was "highly doubtful that the prosecutor or the police made adequate attempts to apprehend the petitioner and compel his presence at trial," but that a new trial was not warranted on that ground alone because "the state court record permitted the inference that the petitioner had decided not to appear at trial."
Nonetheless, Judge Fullam found that there were "more serious problems," noting that when the trial court judge first called for issuing a bench warrant, the prosecutor protested and argued that there was "something different about this case" in that the defendants "are Gypsies" and that "what happens commonly is that they don't appear for trial." Later, the prosecutor declared that he had police officers that were experts as to Gypsies and that the defendants, as Gypsies, "do these type tactics as a matter of course." Judge Fullam cited numerous other references to the petitioner's ethnic heritage, and found that he "was treated differently than he would have been but for his ethnicity," such that "the trial itself was tainted with ethnic discrimination." Judge Fullam also found a "further, separate defect" because the petitioner had not received constitutionally-adequate representation by trial counsel -- who, among other things, had never met the petitioner and had made "no attempt at allocution or argument on [his] behalf" at sentencing. The trial court had departed from the sentencing guidelines and imposed the maximum sentence on each count, to run consecutively.
Judge Fullam's opinion was followed by a two-paragraph order. The first paragraph set forth the relief granted. The second stated simply: "The Court expresses appreciation to Elizabeth K. Ainslie, Esquire for her pro bono representation of the petitioner."
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Firm Lawyers File First-Ever Brief in U.S. Supreme Court in CDA Victory
In April 1997, Schnader lawyers led by Carl Solano and James Crawford in Philadelphia, represented a large group of institutions and individuals who post, view or provide access to artistic, educational and other speech on the Internet in filing an amicus brief in support of the ACLU's position challenging the constitutionality of certain provisions of the Communications Decency Act in Reno v. American Civil Liberties Union. In June 1997, the U.S. Supreme Court ruled in favor of our clients' position. Schnader's amicus brief was the first brief ever to be accepted by the U.S. Supreme Court on CD-ROM.
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