Law Students Entrusted with Condemned Inmates' Lives





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Responsible for the lives of their clients, UC Berkeley Boalt Hall School of Law students representing death row inmates plan to shake the foundation of the death penalty in the United States.

The students and supervising attorneys aim to convince the U.S. Supreme Court justices this fall that potential jurors should not be struck from a jury during the selection process because of their race.

The students, part of Boalt Hall's death penalty clinic that aims to change death row theory and represent low-income death row inmates, say their client, Thomas Jones Miller-El, was not tried before a jury of his peers.

The students maintain that Miller-El, who is black, did not receive a fair trial because prosecutors eliminated 10 of the 11 qualified potential black jurors during the selection process.

Miller-El was convicted in the 1985 slaying of 25-year-old Douglas Walker, a hotel clerk. He allegedly robbed and shot Walker at the Holiday Inn-South hotel in Irving, Tex.

Two recent Boalt Law graduates, who worked in the clinic as students, helped to write a "friend of the court" brief that argues against racial discrimination in peremptory challenges. The challenges allow a plaintiff or defendant's lawyer to dismiss a potential juror without stating a reason for the dismissal. The case seeks to overturn the conviction and death sentence, and reshape the way prosecutors and defense attorneys eliminate potential jurors.

Under the guidance of Elisabeth Semel and Charles Weisselberg, Boalt Hall professors and practicing attorneys, the students in the clinic learn, "what it is like to litigate complicated cases that really matter," Weisselberg says.

The students help represent convicted murderers- at no cost to the client-from Texas, Alabama and California. The clients are usually impoverished minorities. Semel and Weisselberg and other attorneys argue the cases before the U.S. Supreme Court and various state supreme courts.

"We are being exposed to the ways in which death penalty lawyers cope with both the reality of how the capital appellate system works, or doesn't work, and the fact that a person's life is hanging in the balance," says Jennifer Schlotterbeck, a Boalt Law student at the clinic, in an e-mail.

The students help write briefs, conduct investigations, draft pleas and interview witnesses. The students may also meet the convicts.

"You can look at all the pictures or videos you want, or read every page of the trial transcript, but it's just not 'real' until you shake a warm hand," Schlotterbeck says.

Elisabeth Semel and Charles Weisselberg are the lead counsel in a case submitted Monday to the U.S. Supreme Court on behalf of an Alabama man on death row. The case holds that a jury, not a judge, must decide whether or not to sentence a man to death in Alabama.

Under Alabama law, the jury recommends a death sentence or life without parole, but the judge, Semel says, makes the final decision- independent of the jury's recommendation. Twenty-five percent of the time the judge ignores the jury's recommendation, he says.

The client- whose name Semel requested not be disclosed- is a black male convicted of the murder of Louise Crow, a white owner of a bait and tackle shop in Alabama.

Though the all-white jury did not unanimously vote to give the defendant the death penalty, the judge unilaterally decided to sentence the man to death.

The attorneys and students hope the case will ensure that only the jury in Alabama may sentence someone to death amongst other issues, Semel says.

The clinic is designed to take charge of individual cases such as the Miller-El case and the Alabama case, says Weisselberg.

"We chose the cases we did because we thought they were cases where we could make a difference," he says.

Semel and Weisselberg are also the lead counsel in two cases pending before review at the U.S. Supreme Court that call for all convicted criminals to receive adequate representation in clemency reviews and mental competency examinations before being executed.

In both these cases the Supreme Court asked U.S. Solicitor General Theodore Olson to take a closer look at the clinic's petitions and give his opinion- a positive sign that the cases will be heard, Weisselberg says. 

The clinic, which opened in Fall 2001 was organized by Boalt faculty because of student interest in criminal law, says John Dwyer, Dean of Boalt Hall. 

The clinic, which has received over $1 million in private donations, costs upwards of $200,000 per year. 

The million-dollar donation will fuel the clinic for five years, allowing Semel and Weisselberg and students to provide impoverished clients with better representation. The state also provides limited funding.

Travel and investigation expenses are among many factors used to decide what cases the clinic chooses to take on, Semel says. If the investigation can be completed in one state, there is a greater likelihood the clinic will assume the case, but prejudging a case's expenses is one of the "biggest mistakes" a lawyer can make.

"(Deciding how much investigation is needed) is like trying to judge what's underneath the earth when all you see is a leaf," Semel says. "It could be a giant oak tree, but you just don't know."

Semel and Weisselberg expect to be appointed to a death row case in California. The state has an enormous backlog in the courts of death row cases-inmates must often wait five years for representation, Weisselberg says. He adds that the clinic may help unclog the system.

The state will likely provide money for attorney's fees on behalf of the client in this case, but Weisselberg says he would be surprised if the state money covers all the case's expenses. He expects that money for proper and thorough litigation in the case will come from the clinic's own coffers.

Though Semel admits she strongly opposes the death penalty, she says she is running the clinic "for students with all sorts of views", and the clinic was not created "to overturn the death penalty."

"The continued administration of the death penalty encompasses within it some of the gravest problems of the criminal justice system," Semel says. "The inequalities in the death penalty, driven by race and poverty, represent the most significant responsibility a lawyer can take on."

Fourteen students were enrolled in the clinic during each semester last year and 11 are enrolled for the fall semester. The students will work on a range of cases.

All students who want to help represent the clinic's clientele must have an "undivided loyalty to the client," Semel says.

The U.S. Supreme Court has been changing the way the death penalty is implemented in recent times with two landmark rulings occurring in the past two months.

In late June the Supreme Court ruled that executing the mentally retarded violated the U.S. Constitution's mandate against the practice of cruel and unusual punishment. Less than a week later, the court ruled that only juries should be allowed to hand out death sentences.

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