George A. Souliotes
George A. Souliotes
California
Convicted 2000
Death of live-in partner and her two children.
Sentence: Life x 3 (no parole).
Arson Denied
~~~~
July 10, 2013 Freed
(Plead guilty to negligence in maintaining a fire alarm in exchange for time served.)



GEORGE SOULIOTES Modesto, Calif.
CRIME: Convicted of murder by setting his rental property on fire, resulting in the death of his tenants: a woman and her two children.

SENTENCE: Life in prison (1999)

PROSECUTION'S ARGUMENT: When the fire occurred, Souliotes was in the process of evicting the tenants and selling his property for a lower price than his insurance on the house was valued. A neighbor said that she had seen a van drive back and forth by the house several times before the driver parked and ran into the home with something resembling a pillowcase. A flammable substance was found on Souliotes' shoes and in the debris of the fire. Investigators found burn patterns, deep charring, and burned holes in the debris, which were believed to be evidence of arson.

DISPUTED EVIDENCE: A witness said that she didn't recognize Souliotes' car as the one she had seen outside of the house and that her view of the house was obscured. Her physical description of the man she saw didn't match Soulitoes' appearance. She also failed to recognize him in a lineup. She later pinpointed Souliotes at trial. Souliotes' first trial ended in a hung jury. The defense expert that testified in the first trial pointed to a faulty stove in the house with a history of a gas leak, but was not called to testify in the second trial, where Souliotes was ultimately convicted.

John Lentini re-examined the physical evidence of the case and concluded that the substance found on Souliotes' shoes likely was a natural part of the shoe itself, and was chemically different from the liquid found in the debris of the fire; therefore, they could not be of the same origin.

Another expert, Randy Watson, stated that primary pieces of evidence -- burn patterns, burned holes in the floor, and charring -- were all characteristics of accidental fires.

NOW: Souliotes has recently been granted an evidentiary hearing from the U.S. 9th Circuit Court of Appeals.

Ajax Loader Gif

George Souliotes Freed

Posted on
July 10, 2013 by Mark Godsey | 1 Comment

george-souliotes-l-is-released-from-prison-with-sons-r-and-back-r-back-left-morrison-foerster-lead-trial-counsel-james-j-brosnahan-who-secured-souliotes-release-photo-by-donald

Photo by Donald Satterlee, Satterlee Photographs

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.

Northern California Innocence Project Wins Release for Innocent Man Wrongly Convicted of Arson and Triple Murder Based on Faulty Fire Science

Posted on
April 17, 2013 by Mark Godsey | 2 Comments

souliotes-court-media

George Souliotes and his legal team (from left): Orrick Attorney Shannon Leong, NCIP Legal Director Linda Starr, George Souliotes, Orrick Attorney Jimmy McBirney and former Orrick Attorney Megan Crane

SANTA CLARA, Calif., April 15, 2013 –The Northern California Innocence Project (NCIP) at Santa Clara University School of Law and Orrick, Herrington, & Sutcliffe, LLP announced that on April 12, a California federal district court judge overturned the wrongful conviction of George Souliotes for arson and triple murder.  Souliotes, 72, has served 16 years of his sentence of three life terms without parole.

 In granting his release, District Judge Anthony W. Ishii found Souliotes had received ineffective assistance of counsel at trial.  That finding came a year after his attorneys persuaded the judge of Souliotes’ “actual innocence,” successfully arguing his conviction was based on faulty fire science and that no reasonable juror today would convict him.

The judge ordered his release unless the State of California not only notifies the court that it intends to retry Souliotes, but also takes concrete and substantial steps to do so within 30 days.  The order does not specify when he is to be released, but his attorneys expect it to be within 30 days.

“After more than 10 years of fighting for Mr. Souliotes’ freedom we are gratified that the court has found him innocent and ordered his release,” said Linda Starr, NCIP’s legal director.  “Mr. Souliotes’ conviction was a tragedy, and we now know it was based on faulty fire science that has since been discredited.  We hope the California Attorney General will honor the judge’s ruling and not take any further action that might needlessly delay Mr. Souliotes’ long overdue return home. ”

Background

On January 15, 1997, a rental property owned by Souliotes in Modesto, Calif., burned to the ground in the middle of the night and three tenants died in the fire.

The prosecution’s case against Souliotes was based almost entirely on two forensic pieces of evidence that new developments in fire science have since discredited:  First, investigators based their arson determination on certain indicators that were long believed to be evidence of arson — but developments in modern fire science have shown these indicators are just as consistent with accidental fires or any fire where the temperature reaches “flashover” conditions.

Second, forensic tests revealed a chemical compound known as a medium petroleum distillate, or “MPD,” was found at the fire scene and on Souliotes’ shoes.  MPDs are a chemical compound that exist in some ignitable liquids such as lighter fluid, but are also now known to exist in many household products and consumer goods, including the solvents in glues and adhesives used in floor coverings and footwear.  The prosecution had repeatedly argued to the jury that the “shoes tell the tale” in implicating Souliotes.

Souliotes was tried twice before being convicted of arson and triple murder in 2000.  His first trial resulted in a hung jury after his defense counsel provided a vigorous defense and called expert witnesses to rebut the prosecution.  At his second trial, however, Souliotes’ defense counsel failed to present a case, called no expert witnesses to rebut the prosecution and called none of the other fact witnesses who established Souliotes’ complete lack of motive at the first trial.

In earlier proceedings, the California Attorney General conceded that all of these purported arson indicators were equally consistent with an accidental fire, and that there was no scientific evidence the fire was caused by arson.  The Attorney General also conceded that the MPDs found on Souliotes’ shoes are chemically distinguishable from those found at the fire scene, and thus provide no link between Souliotes and the fire. These facts persuaded Judge Ishii that Souliotes had satisfied the “actual innocence” standard and was entitled to proceed with his ineffective assistance of counsel claims, which were otherwise barred by procedural restrictions.

“It has been an incredibly long road, but we are very happy to be nearing the end of it,” said Jimmy McBirney, Souliotes’ attorney from Orrick, Herrington & Sutcliffe.  “Mr. Souliotes has always maintained his innocence, and the evidence has now proven it.  There is absolutely no basis for a retrial, and we look forward to seeing him set free.”

This is the third innocent person NCIP has exonerated in 2013,  and its 17th victory since its creation in 2001.

About the Northern California Innocence Project

The Northern California Innocence Project (NCIP) at Santa Clara University School of Law is a pro bono legal clinical program where law students, attorneys, pro bono counsel, and volunteers work to free wrongfully convicted prisoners.  NCIP promotes substantive legislative and policy reform through data-driven research and policy recommendations aimed at ensuring the integrity of our justice system.  For more information, please visit
http://law.scu.edu/ncip/
Convicted Modesto arson killer can appeal
http://www.modbee.com/2012/04/27/v-print/2176253/convicted-modesto-arson-killer.html

Rosalio Ahumadarahumada@modbee.com
A federal magistrate judge has ruled that a Modesto landlord convicted of murder in the 1997 deaths of a mother and her two children should have a chance to appeal the jury's verdict.

George Souliotes, 71, is serving a life sentence at Salinas Valley State Prison in Soledad for the 2000 murder conviction in Stanislaus County Superior Court.

The jury determined Souliotes set fire to his northwest Modesto rental home on Jan. 15, 1997, killing 30-year-old mother Michelle Jones, her 6-year-old son Daniel Jr. and 3½-year-old daughter Amanda.

In court documents filed Thursday, U.S. Magistrate Judge Michael Seng said Souliotes' attorneys and an attorney representing the state now agree that no one can determine whether the fire was intentionally set.

After re-examining the evidence with updated fire science, the attorneys also agree that chemical residue on Souliotes' shoes did not come from the same source of the flammable liquid found in the burned home.

"The evidence remaining after the scientific evidence was removed is so weak it is insufficient to support a finding of (Souliotes') guilt beyond a reasonable doubt," the federal judge said in his ruling.

What's left is the testimony of a witness that places Souliotes near the home shortly before the fire started.

Seng concluded that no reasonable juror would find that the witness's identification of Souliotes or his vehicle near the home could support finding the defendant guilty beyond a reasonable doubt.

"The whole case (against Souliotes) is gutted," said Linda Starr, legal director of the Santa Clara University-based Northern California Innocence Project. A team from the organization has worked with Souliotes in his attempts to get a new trial.

Prosecutors from the Stanislaus County district attorney's office declined to comment about the federal judge's decision, saying they had not read the ruling and were too busy with other matters Friday.

Starr said she has spoken with Souliotes' sister, who has worked to prove her brother's innocence. Starr said they received news of the court's latest ruling with "cautious" elation, knowing there are hurdles ahead.

Attorneys have 14 days after the ruling to file an objection with the federal court. The attorneys then have 14 days to file a response to objections. It will then be up to the U.S. district judge to decide whether to accept the magistrate judge's ruling, but there is no timeline for that decision.

Starr said she does not expect the case to languish, because the U.S. Court of Appeals for the 9th District has ordered the case to proceed "in an expedited manner."

If the magistrate judge's ruling is upheld, the U.S. district judge could decide to reverse the Stanislaus County jury's verdict. If there were a new trial, it would be in Stanislaus County.



Two trials were held



Souliotes' first trial ended in a mistrial with the jury deadlocked 11-1 for conviction. The second trial ended with 12 jurors convinced Souliotes was responsible.

In the second trial, Souliotes' defense attorneys decided not to call witnesses and relied on the theory that the prosecution failed to prove its case. But the prosecution convinced the jury that Souliotes, who was having financial troubles and trying to evict the home's tenants, had motives to start the fire.

Chief Deputy District Attorney Dave Harris prosecuted the case. During the second trial, Harris told the jury Souliotes needed to sell the home quickly and stood to gain more cash — nearly $93,000 — if the home were destroyed by fire rather than sold.

The federal judge disagreed with the prosecution's theory, ruling that the circumstantial evidence against Souliotes was flawed and provided little support for a guilty verdict.

"The evidence shows he was relatively comfortable financially," Seng said. "He apparently would not have benefitted financially from destroying the house and collecting on his insurance policy. He would have done better selling the house on the open market."

He said Souliotes had a prospective buyer lined up and there appeared to be no financial rationale for destroying the home.

The judge also said Souliotes already had spent time and money to evict the tenants and had once voluntarily delayed the eviction to avoid disrupting the tenants' holidays.

The state had argued that eviction delays had "produced a man so upset with being a landlord that he was willing to, and did, destroy his own property and murder his tenants, two of whom were young innocent children. Clearly, it made no sense to do either," the judge said in his ruling.

Bee staff writer Rosalio Ahumada can be reached at rahumada@modbee.com or (209) 578-2394.


Challenging the ‘Science’ of Arson
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Firefighters in Pearl River Louisiana Photo by Steve Wilson, via Flickr
In a precedent-setting decision, a California judge has ruled that a 2000 arson conviction was based on discredited scientific evidence.
More at:

http://www.thecrimereport.org/news/inside-criminal-justice/2012-05-challenging-the-science-of-arson
Arson and "Junk Science"
http://www.thecrimereport.org/archive/2012-04-arson-and-junk-science

By Paul Bieber
Tuesday, April 03, 2012 04:27
paul_bieber_photo

U.S. Magistrate Michael Seng, U.S. District Court, Eastern Court of California, is expected soon to announce his ruling in an appeal of a case that is a textbook example of bad fire science leading to a wrongful conviction. 
His decision, and the testimony that led to it, will shine a light on a national travesty of justice, where arson evidence that has been discredited for 20 years has been used to misidentify accidental or undetermined fires as arson.
The case involves a defendant named George Souliotes, who was sentenced to life without parole in 1997 for what now appears to have been an accidental fire.  During hearings presided over by Seng, fire experts testified that the evidence used to gain his 1997 arson conviction was utterly unreliable and largely based on “junk science.”
Arson cases are often based on forensic evidence presented in court as irrefutable science, but which in fact has either never been tested or already been proven to be unreliable.
For years, fire investigators were taught that certain burn patterns and fire damage were only created in the presence of a liquid accelerant, such as gasoline.  Furthermore, if a fire was perceived to have burned hotter than normal, the abnormal heat was often attributed to the presence of a liquid accelerant. 
Since the presence of an ignitable liquid in an unexpected location is a strong indicator of an fire set intentionally, the presence of these fire patterns and the perception of abnormal heat were considered prima facie evidence of the crime of arson.  
Incredibly, if laboratory results came back negative for the presence of an ignitable liquid— as they would in an accidental fire—the suspect chemicals were assumed to have burned away from the fire or simply evaporated before the sample could be taken and sealed in a container.  Many arson convictions throughout the nation have been based on exactly this type of evidence.
Fire investigators are now trained to use more scientific methods to determine if a fire is arson or accidental, but many of the victims of these dubious and unscientific conclusions are still incarcerated, and at least one has been executed.
In the early 1990s, these arson myths had already been punctured by scientific research. It became clear that in any fully involved house fire the burn patterns cited by fire investigators as arson indicators were just as likely the result of an accidental fire. 
Fire research has also repeatedly shown that the heat of a fire has nothing to do with the presence or the absence of a liquid accelerant.  Recent
blind study research has shown that the accuracy of experienced fire investigators in determining the presence of a liquid accelerant, by visually examining the burn patterns remaining after the fire, amounts to no better than a random guess. (For further information on this, see The Arson Research Project website)
The new research took years to gain acceptance within the fire investigation community. 
While fire investigators were slowly embracing a new methodology, people continued to be convicted of setting fires that were probably accidental.  Today, nearly all fire investigators utilize the accepted standard of care, but this has done nothing to improve the lives of the countless prisoners throughout the nation serving long prison sentences based on unreliable evidence. 
Nationwide, 5,405 people were in prison for arson in 2002, the latest year for which statistics are available, according to figures from the Bureau of Justice Statistics, National Corrections Reporting Program.
Yet, in 2004, a dozen years after the fire investigation community acknowledged that arson must be proven by science, not mythology, Cameron Todd Willingham was executed in Texas for setting a fire that killed his three young children.
 
His conviction, like so many others, was based on exactly this type of unreliable burn pattern analysis.   Fire experts nationwide now agree that the fire that killed Willingham’s children and led to his execution was almost certainly accidental, not arson.
Such “voodoo science” is so prevalent in old arson convictions that the Texas Forensic Science Commission recently recommended that all arson convictions in Texas be reviewed in order to determine which of the convictions are based on unreliable forensic evidence.  This followed the passage of state resolutions supporting judicial review of arson cases in Arizona, Nebraska and Oklahoma.  
Texas is on the right path in reviewing all of its arson convictions in order to identify the small number of cases hidden amongst them where innocent people have been convicted of setting what were really just accidental fires. 
This review should serve as a model for other states to conduct their own arson case reviews.  Without such a proactive review it is nearly impossible for the wrongfully convicted to have his day in court.
The California case of George Souliotes illustrates just how difficult it can be for a victim of unreliable arson evidence to find justice. 
Souliotes was convicted in 1997 on a charge of arson and triple murder, for setting a fire in his rental property that resulted in the death of Michelle Jones and her two young children.  He was sentenced to life without parole, and is currently being held at Salinas Valley State Prison, outside Soledad, CA.
For the past 15 years, with the help of the Northern California Innocence Project, pro bono attorneys and investigators, Souliotes has been fighting an epic battle through state and federal courts to show that at his original trial, the testimony used to convict him was unreliable and based on discredited science. 
All of the burn patterns and other dubious forensic evidence used to convict Souliotes of arson are created in any fully involved house fire, accidental or intentional.  It now seems clear that George Souliotes has spent the last 15 years of his life in prison for a crime that was never a crime at all. 
Recognizing some of the same types of unreliable evidence and testimony that led to Todd Willingham’s execution, the Ninth Circuit court ordered an expedited federal evidentiary review.  As a result, Judge Seng will now decide whether Souliotes meets the legal threshold of the “actual innocence gateway.”
Basically, he will rule on whether any jury, considering all of the reliable evidence in the case, would find Souliotes guilty beyond a reasonable doubt.  A ruling in Souliotes’ favor would likely lead to additional hearings on his habeas corpus petition, and eventually a chance at a new trial. 
Regardless of Judge Seng’s decision, Souliotes, now in his early 70s, has months or even years of legal wrestling ahead of him before he finds any sense of justice. 
Justice, like time, may pass him by.
George Souliotes and Todd Willingham are just two tragic cases that represent the tip of an iceberg.
People are languishing in prisons across the country because fire investigators and prosecutors used arson evidence that was no more than a hunch.  Because of new research, courts no longer accept these bogus conclusions; or put more precisely, defense attorneys are now better able to attack unscientific conclusions when they are made.
But that doesn’t help those already convicted.  Unless their cases are reviewed they are going to stay right where they are: innocent people serving long prison sentences. 
Case by case review is not an easy process.  Each case requires a painstaking review of documents, testimony and photographs by experienced attorneys and investigators.  But there is simply no other way. 
The alternative is to ignore the fact that innocent people are serving long prison sentences for accidental fires misidentified as arson.  Once properly identified, these cases should be eligible for an expedited clemency review process.
Seeking justice through an appeals process that takes a dozen or more years is no justice at all.
Paul Bieber is a criminal defense investigator for the San Mateo County (CA) Private Defender Program and the director of The Arson Research Project.  His blog and more information about the research project can be found at www.Thearsonproject.org. He welcomes comments from readers.
Man sentenced to life in prison will get to argue his innocence
A three-judge panel of the U.S. 9th Circuit Court of Appeals revived an appeal by George A. Souliotes, convicted of setting a 1997 fire that killed a woman and her two children, even though his lawyers missed a legal deadline in filing it.  Souliotes' prosecution relied heavily on evidence that the fire was started with a flammable liquid and that its residues were found on Souliotes' shoes. A scientist years later showed that the substance on the shoes was different from what was found at the fire. That evidence proves Souliotes is innocent.

UPDATE - April 26, 2012:  On April 26, 2012, federal magistrate Michael Seng found that  Mr. Souliotes made a sufficient showing of actual innocence and recommended that the district court now consider his underlying constitutional claims raised in his federal petition for a writ of habeas corpus. Those claims had previously been dismissed by the district court as having been untimely filed.  It is now for the federal district court judge to decide whether to accept the findings and recommendations.  If he does, the matter should proceed to a hearing on Mr. Souliotes's claims of ineffective assistance of counsel, juror misconduct and actual innocence.
George Souliotes Freed

Posted on
July 10, 2013

george-souliotes-l-is-released-from-prison-with-sons-r-and-back-r-back-left-morrison-foerster-lead-trial-counsel-james-j-brosnahan-who-secured-souliotes-release-photo-by-donald

Photo by Donald Satterlee, Satterlee Photographs

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.