Spring 2015

There is an old saying, “The third time is a charm.” For millionaire real-estate heir Robert Durst however, the third time may be his jinx. Since the 1980’s Durst has been intimately linked to a missing person’s case and two murders, the victims all being close friends or family. Now, the Los Angeles District Attorney’s Office has placed the spotlight directly on Mr. Durst, charging him with 1st degree murder for the death of his close friend and confidante, Susan Berman.

This recent charge stems from a fifteen- year old cold-case, in which Berman was found dead, shot execution style in her home, days before she was expected to speak to police regarding the disappearance of Durst’s wife in 1982. Although Durst had not been considered a suspect in the 1982 disappearance, it has been widely suspected that after years of marriage filled with violence and discord, that Durst was intricately involved in his wife, Kathleen McCormack’s disappearance. In between McCormack’s disappearance and Berman’s death, Durst was charged with the murder of his friend and neighbor, Morris Black, in Galveston, Texas, after admitting that he not only shot Black, but also chopped up and disposed of his body. Through expert legal maneuvering, he was acquitted of murder, after his lawyer’s successfully argued that Durst had killed Morris in self-defense.

Now, over a decade after the death of McCormack, for which Durst has long been the main suspect, new evidence has come to light from an unlikely source. HBO’s documentary The Jinx: The Life and Deaths of Robert Durst, chronicles exactly what the title implies and offers a candid look at the man who has been shrouded in mystery for so many years. While Durst expected and indeed welcomed the questions posed to him by the film’s director, Andrew Jarecki, he probably did not expect the series to be his potential undoing. In the final minutes of the season finale, Durst walked off-screen with his microphone attached, and made a very cryptic statement to himself, “What have I done?” “Killed them all, of course.” The next day, the Los Angeles County District Attorney’s Office filed 1st degree murder charges against Durst for the death of Susan Berman, and immediately sought to extradite Durst from New Orleans, where he was staying under the alias Everette Ward. Although unconfirmed, Los Angeles authorities believe that Durst was only days away from fleeing to Cuba, before being arrested by New Orleans authorities in the hotel lobby in which he had been staying.

Allowing the statement to be admitted as evidence, however, will require prosecutors to maneuver around some tricky rules of evidence. Chief among the legal obstacles is the hearsay rule, which generally does not allow out of court statements or confessions to be admitted as evidence to prove the truth of the matter asserted unless it falls under one of the many exemptions or exceptions. In this case, the strongest argument for allowing the recorded statement is that it is a party admission.

For prosecutors, however, Durst’s statements are simply icing on the cake. In 2002, while on trial for the murder of Black, detectives from the Los Angeles Police Department were comparing handwriting samples from two separate letters; one sent to police indicating the location of Berman’s body, and the other addressed to Berman. The handwriting on both letters are strikingly similar, and indeed, exhaustive forensic examination has concluded that both letters were most likely written by Durst.

Known as an “eccentric millionaire” Durst agreed to be filmed for the documentary after his attorney repeatedly advised him not to, probably because the director of the series, Andrew Jarecki, is the same man who directed the 2010 film All Good Things, which starred Ryan Gosling playing a fictionalized version of Durst. The film was less than flattering to Durst, and for the most part showed Durst to be a severely disturbed man. It indicated that he was solely responsible for the disappearance of McCormack and the deaths of both Black and Berman. If Durst is indeed guilty of Berman’s murder, it is extremely puzzling that he would volunteer himself to be a part of a television series directed by a man who clearly vilified him previously. It could be that Durst and his attorney believe this is precisely why the public should be slow to point fingers at the 71 year old, and that Durst purposely placed himself in the spotlight because he had nothing to hide.

Innocent or guilty, Robert Durst is certainly an odd man, and this case is sure to be one of the most captivating celebrity murder trials since the acquittal of O.J. Simpson in 1995. Shortly after being arrested in New Orleans, Durst can be seen smiling at cameras fully clad in an orange-jumpsuit and handcuffs while sitting in the back of a police car. More recently, the Texas judge who presided over Durst’s 2002 murder trial, Susan Criss, has come forward with some shocking revelations. Shortly after testifying at a parole hearing for Durst, she found a dismembered cat on her doorstep, and she believes Durst was responsible. In an interview on CNN Criss said, “I saw something right at the foot of my sidewalk, and at first I thought it was a dead rat . . . I realized it was a severed cat head with the front two legs attached . . . it was done perfectly, it was clean . . . I knew he had a history of destroying animals and cutting up animals and doing terrible things to them.” With Durst’s attorney attempting to have Durst placed in a psychiatric ward, it may be that they are gearing up for an insanity defense, but with evidence mounting against him, it seems that all good things do in fact come to an end.

Without referencing a dictionary, can you define the word terror? If you can, I envy your seemingly eidetic memory. If you can’t its ok; your confusion has been strategically placed. Words and phrases like these are what modern political scientists call “glittering generalities,” which reference words or phrases that sound very appealing, but in reality have no substance behind them. A recent example of a “glittering generality” is President Obama’s 2004 campaign slogan, “Yes We Can,” or George W. Bush’s “Either you’re with us, or you’re with the enemy.” Phrases like these are examples of terminology, which ignite patriotism and united stances towards common national goals. But what do these phrases actually mean? What can we do? Who is the enemy?

Geopolitics is a tricky business and with the advancement of social media, where information travels at the speed of light, politicians have had to learn how to adjust the framing of issues, especially issues that are widely unpopular in the U.S. In the 1940’s and 1950’s the U.S. was able to garner public support against the former U.S.S.R. and against the dire threat of “Communism.” Fast-forward to modern times, and the latest “glittering generality” has become “terrorism.” Our elected officials would have us believe that the word terror refers to any and all persons or groups who would threaten the sovereignty of the U.S. But who defines what constitutes terror and what “acts of terror” demand our attention? Was the Oklahoma City Bombing in 1995 a terrorist act? Most would answer in the affirmative, and of course they would be correct, but what about the Columbine shootings in 1999, or the atrocities being committed in Sierra Leone? We have appropriately responded to global threats of terror with resounding and unflinching military force, yet it seems we blissfully ignore issues of gun violence, genocide, and poverty, even as the numbers of these incidents increase year after year.

We Americans, however, are not bad people. Our values are entrenched in “justice and liberty for all,” yet we seem to have selective hearing when it comes to which incidences of “terror” we respond to.

The truth is, it is not our fault. We rely on our public officials and media outlets to tell us the truth about domestic and world issues so that we may make sound and educated decisions when we stand in line to vote. We forget, however, that most of our politicians and Presidents are, or were, attorneys and extremely skilled at explaining facts in a light most favorable to their interests. Words like “terror” and “Communism” have become “glittering generalities,” because among other reasons, our elected officials have capitalized on our feelings of patriotism and inability to notice the slippery slope these words create. Think back to the anger, sadness, and confusion we all felt after 9/11, and the ensuing military campaigns. Phrases like “weapons of mass destruction” and “terrorism” were thrown around so often that we failed to realize, or even admit, that the United Nations inspectors found no such weapons of mass destruction in Iraq and we invaded nonetheless. In fact the word “Islam” itself became vilified to the point that anyone wearing a turban, Sikh or Muslim, radical or not, was targeted as a “terrorist” or “anti-American.”

Interestingly enough, there is no real consensus on what the word “terror” actually means. The Federal Bureau of Investigation, college dictionaries, and scholars alike all attribute different definitions to the word “terror.” Most would agree that “terror” is a state of extreme fear, whether it be through violent actions or words. So then, if we indeed have embarked on a “War on Terror,” we should be attacking those who would commit genocide against African children being forced to work the diamond mines of Sierra Leone. We should be attacking those who would increase the ease and availability of military grade weaponry for common citizens. We should be attacking those who seek to ignore poverty in our own nation, leaving millions of American adults and children in extreme fear of starving to death, and we should be attacking the policies of our elected officials as to why nothing is being done.

You may say that the people of Africa, impoverished U.S. citizens, or the thousands of starving immigrants standing at our borders are not our problem, but they too live in “terror.” They too are victims of violent words or actions which have instilled in them an “extreme fear” of their unknown futures, and the more we throw around words like “terror” and “immigrant,” the more we blur the lines of the very language we speak and cherish. Those of us with a strong command of the English language must use it to help us understand our own differences, and the realities of where we chose to place our hard earned tax dollars, not to create confusion and divisiveness. It is our responsibility as burgeoning attorneys, writers, scholars, and advocates to shake off the glitter of these generalities, and to replace “terror” with hope, “immigrant” with American, and to call a “spade” a spade.

This year, the Student Bar Association (SBA) is hosting their annual Barrister’s Ball on Saturday, March 28th at the field of Petco Park! For those who have never attended, Barrister’s Ball is a prestigious awards ceremony and reception to honor TJSL’s distinguished faulty, alumni, and students. It is an opportunity for the entire law school community to come together and celebrate our institution’s achievements in a fun and formal setting.

This year, for the first time, we are hosting the event on a National Baseball League field—Petco Park, home of the San Diego Padres. Another first this year, is the performance of our very own professor band, The Innocent Bystanders! With the exceptional venue, stellar entertainment, and the even greater company, the night is sure to be one to remember! Tickets are $85 and can be bought online or on the second floor of TJSL from 10:00 a.m. - 6:00 p.m. If there are any extra tickets they will be sold on the day of the event for $100.

Tickets include: - A three course meal catered on the field - A drink ticket during cocktail hour - Free wine at dinner - Free entry into our raffle featuring numerous prizes - A live performance by the Innocent Bystanders - Free photo booth and professional photographer pictures - Free admission and no wait to Fluxx, Sidebar, and F6ix *Drink specials at all three after party locations!

If you haven’t yet, please make sure you buy your tickets as soon as possible, we have a limited amount this year and as every year in the past, it will sell out! If you have any questions, please email SBA at sba@tjsl.edu. We look forward to everyone’s attendance!

Here is a list of what San Diego has to offer for all you love birds on Valentine's Day.

From the moment you stepped into this school, law students, lawyers, and others whose lives seem to revolve around TJSL and the practice of law surrounded you. Quickly, school becomes a place to make friends, socialize, study, eat, and it controls many other aspects in your life. 

Suddenly, perhaps before you actually realize what is happening, you may have been sucked into a very small world, with very small pieces of drama that all of a sudden take precedent in your life. Everyone has an opinion and wants everyone else to know that opinion; so many opinions start floating around that you just want to be heard, and it sounds like “Oh My Goodness, can you believe . . .”

Law school is important. Friends at the school are important. Focusing on whatever helps you get through the day is important. But at the end of the day if you are sitting at home, stressing about something someone said, you get to decide whether or not you are going to lose sleep over it.

We should all be adults at school, but I’ve seen it quite a bit in three years, we lose track of our adulthood somewhere along the way. 

I like to use the five-year rule. In five years, is this going to matter to me? In five years is anyone going to care about what happened in this specific instance? If the answer is no, then I do not need to lose sleep over it at night. 

The things that are going to matter in five years to me are not the politics of law school. The things that will matter are the relationships I have made and how much effort I put into my own successes and failures. 

Every now and then, we need to remember that the world is bigger than law school. We need to expand our horizons and our thinking. When everything starts bearing down on us, take a deep breath and ask whether or not it will matter in five years. And if it won’t? Let it go, and look beyond the minutia.

This year Barristers Ball doesn’t fall on Valentine’s Day, which means we have to come up with our own plans for celebrating Valentine’s Day. Here are 5 romantic ideas to get the wheels in your head turning (on things not related to law school related). 

Remember, Valentine’s Day is a HUGE day for the hospitality industry so be sure to make reservations early and if you want to beat the crowds try to go for an early dinner. The sun is to set at 5:30 p.m. which means dinner at 4:30 p.m. would be totally acceptable.

1. La Jolla Cove Grab or make an early dinner and watch the sunset at the cove. Follow it up with a long walk on the beach and some cuddling. La Jolla is a great place for dates and has restaurants on all ranges of the pricing spectrum. If you can’t afford one of the steak houses, there is an awesome crepe place that would be perfect for a post-sunset dessert!

2. Hotel Del Coronado Few places are more romantic than the Hotel Del Coronado. Partner that with the beautiful beach and tons of outdoor dining and drinking, and you’ve got the perfect date idea. Additionally, you can woo your partner with dreams of post-law school debt grandeur. If you don’t want to eat at the hotel, Coronado Island has tons of beautiful restaurants that are right on the water and make for another nice backdrop for your date, I recommend Il Fornaio Coronado.

3. Balboa Park For Balboa Park I would recommend eating at the Prado. The food is fantastic and the atmosphere is great. Plus, after dinner you can walk around the park and listen to the musicians playing or walk through one of the museums. It is such a beautiful place and you don’t have to worry about running out of things to talk about.

4. Bertrand at Mister A’s Bertrand is on every romantic dining restaurant list I have seen. It’s in Bankers Hill and has breathtaking bay and skyline views. It’s pricey but apparently it’s the best of the best. After this I would suggest a Netflix marathon and maybe a back rub for whoever bought dinner.

5. Gondola Rides on Mission Bay Take your significant other for a Gondola ride on Mission Bay. Companies give private hour-long rides daily that go until 11 p.m. Watch the sunset and then take your date to see a movie. I can almost guarantee she wants to see 50 Shades of Grey and you probably do too, then go home and reenact the scenes. My suggestion would be the one where she gets hired for a job right out of college.

In the Old Testament of the Bible, there is a story of a very wise and powerful king named Samson.  Jealous and power hungry, many detractors began conspiring to kill him.  After some years his bride Delilah inquired after the source of his un-earthly power, “Tell me the secret of your great strength and how you can be tied up and subdued.”  Samson replied, “No razor has ever been used on my head . . . If my head were shaved, my strength would leave me, and I would become as weak as any other man.”

Professor Susan Bisom-Rapp does not purport to have un-earthly powers, nor are there people out to get her. She has, however, been teaching law at TJSL for more than 18 years, and if the opinion of her students carries any weight, she has been doing it very well. I recently stopped by her office to pick her brain, and see if I could discover the source of her longevity and classroom prowess. If you don’t know who she is, or you haven’t had the privilege of taking one of her classes, you’d surely recognize her. The “Silver-Fox” as she is colloquially known on Ratemyprofessor.com,  shares a unique attribute with Samson . . . the hair. “I happen to believe that having good hair can take you a good distance in life in general . . . maybe it’s because my hair has become my signature. Most people assume its platinum blonde, and it is nothing of the sort. It’s something that began in my teens, and I never associated it with aging . . . it’s completely natural . . . what you see is what you get.” 

Professor Bisom-Rapp is not frustrated by the fact that many people believe her hair is dyed, or is some type of stage-makeup; in fact, she uses this confusion to fully engage her students in class. “A lot of it is an act . . . within most of the first semester is to create a diabolical persona and some horrific hypotheticals that we can apply legal rules to make it entertaining and fun. Law school in the first semester is stressful enough, and people need a chance to laugh. I have found people are less likely to check Facebook during class, if I keep them entertained.”  This act, however, is something that developed over time, and just like many first year students, Professor Bisom-Rapp has learned to adjust, and fine-tune her approach to the law, a lesson many of us can learn.  She explained that similar to a law school exam, she learned that “amazing things begin to happen” when you know the law, have three to five bullet points to work with, and speak from the heart.  “You figure out who you are, who your audience is, what the judge wants...what your client wants ... and I also discovered that I was funny.” 

Beyond the nuggets of wisdom she dropped regarding success in the legal profession, Professor Bisom-Rapp is also a living example to those juggling law school and a family, or those like me; staring down an un-eventful and potentially lonely Valentine’s Day. She is married to her high-school sweetheart, traveled across the country with him to teach here, and completed her LLM and JSD while raising a child.  “Relationships are mutualistic . . . it’s not all about you, but you can’t affiliate yourself with someone who is going to make exorbitant demands that make it impossible for you to do what you need to do as a law student. There are a lot of people who did successfully meet their true love at Thomas Jefferson . . . some of them have gone on to have children, and even people who have named their kids after our school.”  Short of giving advice, she explained that being in a relationship during law school will definitely help you decide if the person you are with is the right person to partner with,  a concept that bleeds very neatly into the practice of law itself.

However, at the end of the day (or the end of the semester) it is all about perspective, and our conversation made that abundantly clear. “It can’t be ALL about the law ALL the time,” she said.  Most of our doctrinal courses deal with weighty subjects, with real and sometimes life altering results, and it is essential in legal study, and indeed in legal practice, to be able to step back from the monotony. Professor Bisom-Rapp practices what she preaches and is a living testament by smiling through the ups and downs of life, love, and the law. So, with both Valentine’s Day and the Barristers Ball coming up, it may behoove us all to take a page from Professor Bisom-Rapp and Samson’s playbook. Go out, get your hair done (no scissors), throw your head back and laugh diabolically. After all, we law students are a rare breed and as Professor Bisom-Rapp can attest to, it may not seem like it now, but these three years will go by in a flash. “You may not like all of your classes, or professors for that matter, but you will miss some of them.”  Indeed, with such memorable professors like Professor Bisom-Rapp, I already have a first candidate in mind.

[1] Judges 14:18.

[2] Id.

[3] Id.

[4] Id.

[5] Rate My Professors, http://www.ratemyprofessors.com/ShowRatings.jsp?tid=453458 (last visited Feb. 6, 2014).

[6] Interview with Susan Bisom-Rapp, Professor, Thomas Jefferson School of Law, in S.D., Cal. (Nov. 17, 2014).

[7] Id.

[8] Id.

[9] Id.

[10] Id.

[11] Id.

[12] Id.

[13] Id.

[14] Id.

Jordan, the brand coined by and around Michael Jordan, who is arguably the greatest thing to ever happen to the NBA and undoubtedly the greatest basketball player of all time, has helped turn Nike into a household name that is synonymous with sports and professional athletes.

Jacobus Rentmeester, a freelance photographer, is bringing a copyright infringement claim against Nike in an Oregon federal court. Rentmeester alleges Nike used and continues to use a photograph he created of Michael Jordan for their Jumpman logo. Rentmeester says that in 1984, he took a picture of the then college-aged Jordan in his Olympic warm-ups for an issue of Life Magazine.

Nike later approached Rentmeester about using two 35mm transparencies of the photo for a marketing campaign. Nike paid Rentmeester $150 for the limited use and a few months later Nike gave Rentmeester an additional $500 to continue using the image. In 1985, Nike reshot the Jordan Jumpman photo and Rentmeester threatened to sue, claiming Nike used his work when they recreated the shot of Jordan in Bulls gear with the Chicago skyline in the background. Rentmeester was awarded $15,000 and Nike was given a two-year license to continue using their reshot for billboards and posters in North America. That image became the basis for the modern Jordan logo we all know today. Since the job was a freelance assignment Rentmeester retained the rights to the image.

The lawsuit claims that for the original photo Rentmeester directed Jordan to pose in that specific position while dunking. Rentmeester created the pose, which was inspired by a ballet technique known as a “gran jete,” a long horizontal jump during which a dancer performs splits in mid-air. The pose was conceived to make it appear that Jordan was in the process of dunking, but the pose is not reflective of Jordan’s natural jump or dunking style. Rentmeester declares Jordan practiced the desired leap because it was an unnatural move for him since he typically held the ball with his right hand.

That logo first appeared on a pair of shoes in 1987 for Nike’s third version o the Air Jordan. Nike has since trademarked various of the logo, in 1989, ’92, and ’98.

Rentmeester is asking for profits associated with the Jordan brand, which generated $3.2 billion in retail sales in 2014, and is also seeking to stop current sales and end any plans in the brand’s future. “Nike spokesman Greg Rossiter told The Associated Press that the company is not commenting on the lawsuit.” 

Federal copyright law allows copyright claims to be brought within three years of an infringing act.  In May 2014, the U.S. Supreme Court in Petrella v. MGM ruled that delay in filing a copyright claim isn’t a bar to seeking damages as long as the copyright infringement continues. 

Bert P. Krages is an Oregon-based attorney specializing in intellectual property law and photographers’ rights.

His opinion in Rentmeester’s claim is “One of the elements of copyright infringement is that an ordinary observer would have to find the works to be substantially similar.”

At one level, the Nike photo and logo are similar to the Rentmeester photo in that they depict a basketball player in midair with extended legs and holding the ball high over his head with his left arm.

On the other hand, the Nike photo and the logo show Jordan with straight legs and arms whereas the Rentmeester photo shows some curvature in the legs and left arm. Also, in the Rentmeester photo the right arm is held near shoulder level instead of at waist level.

So the major issue in this case could come down to whether the Nike photo and logo are seen substantially as copies or as independently-created variations of a jumping basketball player.

[1] Darren Rovell, Nike Sued Over Michael Jordan Logo, ESPN (Jan. 23, 2015, 10:37 PM), http://espn.go.com/nba/story/_/id/12218091/photographer-sues-nike-michae....

[2] 17 U.S.C. § 507(b) (2014).

[3] Petrella v. MGM, 134 S. Ct. 1962, 1967 (2014). 

May 16 is just a few months away, and that means the bar examination is not far behind. I know, I can hear you hissing at me. I’m sorry, but I think we will all be better for sharing as much information about our upcoming graduation and the bar examination as possible.

Graduation applications should be turned in, to the 6th floor, as soon as possible. Also, if you want pro bono recognition, fill out the pro bono form and turn that in to Randy Ward on the 7th floor. Check your transcript and make sure all of the requirements that you have fulfilled are accounted for.  If they are not, check with the registrar. If you are in a fellowship program chances are you need to turn in an application for a certificate, do that now.

I am sure you have already decided where you are going to take the bar, but if you haven’t now is the time to make sure you have looked at the state’s bar examination requirements and register. If you are taking the California bar, check http://admissions.calbar.ca.gov/Requirements.aspx for the requirements. Registering with the state bar costs about $100.

Most people have already taken the MPRE, but if you haven’t, you must, and you have to get an 86. Scores for other jurisdictions vary, so check with them. The next California test is on March 28, and there is another one in August and November. You can take the MPRE post bar, but if you, you may have your license held up and will not be sworn in on the November date. Registration for the MPRE is $80.

To prep for the MPRE check out TJSL’s Academic Success Program & Writing Center on the TWEN page. There you will find a posted lecture and handout. Additionally, all bar prep programs (Barbri, Kaplan, etc.) have MPRE books they will generally let you have for the cost of your email address. But you should prepare for the test, no one wants to have to do it again or pay another $80. You can find dates and deadlines at http://www.ncbex.org/about-ncbe-exams/mpre/test-dates-deadlines-and-fees/.

The moral character application . . . cue scary music. It’s a lot of information. This is why they tell you to do it in the summer between 2L and 3L, but if you haven’t done it, now’s the time. Determinations can take anywhere from 6-10 months. Your license is held until all the discrepancies are cleared. You will need addresses of ALL the places you have lived and worked since you turned 18, references including at least one attorney, and other information such as your education. The moral character application costs $500.

In addition to the moral character application, you must complete a Live Scan – finger printing. The Live Scan must happen within 6 weeks of filing your moral character application or you will have to do them again. Be sure to fill out and bring the form included in the moral character application with you when you are finger printed. There are several places to complete a Live Scan. San Diego Community College Police, located at 1536 Frazee Rd., is close and takes walk-ins Monday through Thursday from 7:30 a.m. to 5:00 p.m. and Fridays from 7:30 a.m. to 12:00 p.m., and the cost is
 $20.

Bar prep courses, whatever you decide to do you have to go all in! Do not rely on anything but the hard work and dedication you will put into bar prep. Just because you are in the top 30% of the class does not mean you will pass the bar. There are Barbri, Kaplan, Themis, and a variety of other courses available, and representatives are always on the 2nd floor just itching to talk to you about their course. Search the Internet, check out Facebook and Twitter, but whatever you decide has to be the right fit for you. Each course generally allows you to go on their site and do some type of simulation, and the reps always have sample outlines for free. Keep in mind these books are not the actual bar prep books. Courses range in price, but some have payment plans, and TJSL has a new bar scholarship you can apply for this semester. You can pick up an application on the 6th floor or download the application at http://www.tjsl.edu/sites/default/files/files/TJSL_bar_study_scholarship.... In March bar applications will become available online. You can find information at http://admissions.calbar.ca.gov/Examinations/DatesDeadlines.aspx. But there will be an application fee of $614, and a laptop fee of $139. Until then happy studying, here is a link to past Cal Bar questions http://admissions.calbar.ca.gov/Examinations/DatesDeadlines.aspx.