By Linda Starr, Northern California Innocence Project…
On July 3rd, Northern California Innocence Project client George Souliotes walked out of a Stanislaus County jail a free man, after his attorneys from NCIP, Morrison & Foerster, LLP and Orrick, Herrington & Sutcliffe, LLP successfully negotiated an agreement to secure his immediate freedom following 16 years of wrongful incarceration. Souliotes was wrongfully convicted of arson and triple murder in 2000. The state sought the death penalty but the jury instead voted for three life terms without parole. NCIP has worked on this case for more than 10 years – over which time dozens of our students have had the opportunity to work on the case.
The tortuous path of this case is worth reviewing as a classic demonstration of all that can go wrong with a criminal prosecution. Mr. Souliotes’s first trial for murder and arson for the deaths of a mother and her two children in a fire in his rental home, resulted in a hung jury. He was convicted in a second trial and his conviction was affirmed on direct appeal. After losing the case on state habeas through the state courts, NCIP and our pro bono partner filed a federal habeas petition. The district court dismissed the petition finding that some of the claims had been filed 5 days beyond the AEDPA statute of limitations.
The 9th Circuit then upheld that finding when our panel was forced to follow a different 9th Circuit panel that in Lee v. Lampert, 653 F.3rd1125 (9th Cir 2010) had only weeks earlier held that Schlup did not apply to an AEDPA statute of limitations violation. Then, with the Innocence Network appearing as amici, the 9th Circuit granted en banc review of Lee and reversed, holding that a Schlup finding of actual innocence would permit a court to overlook an AEDPA statute of limitations violation. (Lee v. Lambert, 653 F.3rd 929 (9th Cir 2011)(en banc)). Based on that new Lee decision, the 9th circuit reversed that part of the holding in our case as well and sent the matter to the district court for a Schlup actual innocence hearing.
We then had a Schlup hearing in federal district court, at which experts including Jennifer Dysart, Jim Lentini, Steve Carman, Thomas Streed, and others testified and after which the federal magistrate found and the district court agreed, that we had established that Mr. Souliotes was actually innocent and that his conviction was based on faulty fire science as well as a totally unreliable eyewitness identification. The U.S. Supreme Court then granted cert in McQuiggin v. Perkins, putting the whole case again at risk for dismissal.
The magistrate and federal district court judge refused to stay the proceedings pending Perkins, considered the merits of the habeas petition and reversed the conviction based on ineffective assistance of counsel and ordered Mr. Souliotes released within 30 days unless the State took concrete and substantial steps to retry him before July 10, 2013. The State announced that it would retry him and retrial had been set to begin on July 8.
When the state indicated its intent to retry Mr. Souliotes, renowned trial attorney Jim Brosnahan and his firm of Morrison and Foerster, including partners George Harris and Raj Chatterjee, as well as associates Chris Mangana and Andrew Bernick, and paralegal Tom Beyer, looked down the barrel of the gun and agreed to take this triple homicide to trial within 6 weeks! Working with NCIP as well as with the Orrick team, Mr. Brosnahan led the retrial efforts that reached a turning point when a Stanislaus County Superior Court judge excluded both the outdated and faulty fire science and the testimony of the “eyewitness” as highly unreliable.
Under the terms of the agreement announced last Tuesday, Souliotes pled no contest to three counts of involuntary manslaughter for failure to maintain a working smoke alarm as required by the California Health and Safety Code. And the plea could be entered only after we thoroughly explored the potential immigration consequences with the superb immigration lawyer, Zackary Nightingale.
On July 3rd, Mr. Souliotes was released for time served. The defense team and Mr. Souliotes maintain his absolute innocence. But Mr. Souliotes, 72 years old and with health issues, along with his legal team and his family, decided that it was in his best interests to resolve the case before a third trial, so that he may return home to his family and friends immediately and without restrictions.
This case had an extraordinary contribution of pro bono assistance. The herculean efforts of law firm of Orrick, Herrington and Sutcliffe, and in particular associate Jimmy McBirney, as well as associate Shannon Leung, and former associates Megan Crane, Randy Luskey, and Anne Hawkins resurrected this case from a draconian AEDPA death. Their work in the federal court was nothing short of miraculous.
Cooley Godward, led by Lori Mason, filed amici on behalf of the Network, in Mr. Souliotes’s proceedings as well as in the Lee v. Lampert en banc proceedings, contributing to that critical reversal. Lori and Cooley then also filed an important amicus brief in the U.S. Supreme Court on behalf of the Network in Perkins.
Throughout, the team received the terrific assistance of investigators Sheila Klopper and Grant Fine.
NCIP has investigated and litigated dozens of cases over the 12 years of our existence – this is our 17th victory since our creation.
But no case has so consumed our office for so many years. No case has raised so many procedural hurdles and substantive issues as this case, including AEDPA pitfalls, faulty forensic science (of several kinds), newly discovered evidence, ineffective assistance of counsel, mistaken eyewitness identification, actual innocence, Vienna Convention issues, jury misconduct, and a witness whose own charges “went away” when she cooperated here. The case required massive coordination of legal teams and management of the unpredictable press, with enormous pro bono assistance from the public relations firm of Sard Verbinnen, especially Lindsay Andrews, Jenny Gore and Reze Wong.
Discretion does not permit me to name the many prominent and influential people from the highest levels of politics, business and law who came to our aid over the years to try and negotiate with the state attorney general’s office to get them to see that justice required that they drop their procedural opposition to the case and let it proceed on the merits.
This win truly exemplifies the importance of the work that we all do. It demonstrates how even with a miscarriage of justice so obvious to so many, it can be impossible to have a wrongful conviction overturned – particularly where deadlines matter more than innocence. It demonstrates the extraordinary contributions of our pro bono partners who share our commitment to justice – this case has received more pro bono assistance than all of our other cases combined.
But I am mostly just blown away by Mr. Souliotes. He knew that my father had recently passed away. And when I called him after his release, after another of his many thank yous, his first thought was to ask about my ailing mother and how she was able to handle things. He really makes it so easy to think about doing it all again.