Michael A. Hestrin remembers vividly his first day in court. It was 1996, and he was part of the first group of students to take the Criminal Prosecution Clinic. He was assigned an evidence hearing and spent hours researching—then the moment he’d been anticipating came. “I stood up and addressed the judge, and I just knew. It felt absolutely right. It was transformational for me,” says Hestrin ’97 (MA ’97). Now a senior deputy DA in his 13th year with the Riverside County District Attorney’s Office, he was named “Outstanding Prosecutor” by the California District Attorneys Association in 2009.
Up until that point just over a decade ago, Hestrin had no idea that trial work would be his passion. “I had all sorts of other plans. I speak other languages—I thought perhaps I’d do international law,” he says. “Law school had been a process of finding out what I didn’t want to do. There were moments when I was discouraged, but then I found the clinic.”
Hestrin’s first case was a motion to suppress evidence—his job was to fight the motion. “Until then everything had been theoretical. Then I took the clinic and was assigned a case. To me it was the biggest case ever. I handled it all myself, calling witnesses, everything. It’s funny looking back now—I was so nervous, I wanted to throw up.”
Watching Hestrin make his courtroom debut were George Fisher, Judge John Crown Professor of Law and faculty co-director of Stanford’s Criminal Prosecution Clinic, and the other five clinic students, including Truc T. Do ’97.
“Afterwards, we were all so happy that Mike won his motion,” says Do, who recently ended a 10-year career in the major crimes division of the Los Angeles County District Attorney’s Office as one of the lead prosecutors on the Phil Spector retrial and is now of counsel with Munger, Tolles & Olson LLP. “And I said, ‘Yeah, one for the team.’ But George said no, ‘Not one for the team, one for justice.’ I remembered George’s words when I became a prosecutor. It’s not about who wins. A guilty verdict is not something to pat yourself on your back about. It’s about seeking justice, not personal victories. I learned so much about how to practice law and what it means to be a lawyer from George. Every lesson in George’s class came with a message about how to be a responsible, ethical lawyer.”
That Fisher was the one to start the Stanford Criminal Prosecution Clinic is not surprising. He joined the faculty in 1995—moving to California from Boston College Law School where he was a clinical professor. A former Massachusetts assistant attorney general and assistant district attorney, Fisher is one of the nation’s top scholars of criminal law and evidence. He’s also a well-regarded teacher who has been elected by students three times to receive their highest praise, the John Bingham Hurlbut Award for Excellence in Teaching at Stanford Law School.
But Fisher faced some steep hurdles in launching the clinic. The first step was to convince a local district attorney to allow the students into the DA’s office—taking up valuable time working with students and appearing with them in court. It was a lot to ask. He found the perfect partner for the venture in Margo Dianne Smith ’75 and the Santa Clara Office of the District Attorney.
Then a Santa Clara County deputy district attorney, Smith negotiated the agreement in 1996 to launch this—the area’s first criminal prosecution clinic—with the DA’s office. She had organized internships with local law schools before, but Fisher’s proposal would require significantly more effort from their staff. “Not everyone in the office supported the idea of a student clinic,” says Smith. However, George Kennedy, who was the Santa Clara DA at the time, got behind the idea quickly. “Kennedy saw working with the clinic students as our duty, as community outreach,” says Smith. And so a partnership between the Santa Clara County Office of the District Attorney and Stanford Law School was formed—and is now entering its 15th year.
Pedagogy and Practice
The clinic combines practical legal training with classroom lessons. Students spend three days a week at the DA’s office working with a deputy DA, primarily on evidence hearings, and then one to two evenings in a seminar with Fisher. One day is unscheduled and open for private meetings with Fisher to discuss specifics of a case.
“This is one of the most trial-focused of Stanford’s clinics. Students can make seven court appearances over the course of the twelve-week clinic. And there’s a lot of supervision. I moot their cases with them—they handle the prosecutor’s role, and I play witness and defense lawyer. Students arrive at court very well prepared,” says Fisher. “They also receive on-location training and guidance from the deputy DAs. In court the students usually argue their cases unaided, without much handholding by the DAs. That’s partly a measure of their peace of mind and how well they know our clinic students.”
A key underpinning of this clinic is the framing that Fisher offers on ethics, which emphasizes the power of the prosecutor’s position.
“Prosecution work is all about using power morally. There is a strict ethical code that prosecutors must follow,” says Fisher. “They are supposed to serve justice, not advocate for victims. However the law and the facts break, they control the case. Prosecutors merely follow the law and the facts, even if that means advocating for a prisoner’s release.”
“People sometimes ask me how I can send people to prison,” says Hestrin. “But I remind them that I also clear many people. Prosecutors keep people from going to prison all the time. It’s a very important part of our job.”
This idea is reinforced in Fisher’s instruction to students: The DA is boss on calls of strategy; but on ethical calls, the student is his or her own boss. Fisher explains that police evidence is a constant focus in the prosecutor’s job: Was it gotten lawfully? Is it sufficient to prosecute? and so on. When there is a problem, it’s equally important for the prosecutor to sit down with a police officer and review why a case won’t go forward, what the officer missed, and how their investigation should be changed, he says. At times, students report, this perspective causes some tension with the DA’s office.
“We had some thorny issues with police evidence, which was met with a fairly hard line at the DA’s office,” says David González ’99, a partner at Sumpter & González LLP, the firm he co-founded with his wife, Corinne Sumpter ’99, right out of law school. “In the end, that too was a good lesson. We learned the difference between theory and the realities of a busy office with tons of cases where there isn’t a lot of time to have scholarly discussions. But one of the great benefits of the clinic is that we as students did have time for that discussion, and it was led by George. We were allowed to be part of that office and also part of an academic culture.”
“It’s really a question of experience,” says Smith, who retired from the DA’s office in 2005 after almost 10 years of supervising Stanford clinic students. “Seasoned DAs have a good idea about when to question things and when to trust. The students are new to this. And coming from a top-tier school like Stanford, they’re used to questioning things. But they are still learning.”
That the partnership between Stanford Law and the Santa Clara County DA’s office has lasted 15 years—despite occasional differences—is testament to the dedication each group has for the endeavor and to its valuable lessons.
“I’ve done a lot of trials and cases, and I’ve been in situations where prosecutors will say we don’t have to give evidence now, or they’ll lean in a direction that I find questionable. And I’ll say—no—why hold something back? Share it as soon as you have it. I go back to George’s lessons all the time,” says Hestrin.
“In defense, there is a freedom you have to zealously defend your client. It’s lonely being a prosecutor, a harder job,” adds González. “There are some things police do that you may not like, but what the defendant does may be worse. In defense, there’s only one thing—your client.”
Andrea Batista ’10 describes a common practice in a local county courthouse permitting attorneys to sit while questioning witnesses. But “George insisted we stand—he found sitting to be completely inappropriate,” says Batista, who currently is clerking for Judge Jorge A. Solis of the U.S. District Court for the Northern District of Texas before joining Vinson & Elkins’ Dallas office next year. “George taught us formality—to present as though we’re arguing in a federal court.”
“George is such a gifted teacher,” says Hestrin. “He has made a lasting impact on so many of us. And while the clinic students don’t all go on to become prosecutors, those of us who do bring his lessons with us—we train new lawyers, we influence those we work with. So there is a multiplying effect.”