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Boalt Hall’s death row defenders
U.S. Supreme Court validates reasoning of death-penalty clinic students in Texas capital case

| 12 March 2003


clinic staff

Law professors Elisabeth Semel and Charles Weisselberg with Sarah Ray, center, a student in Boalt Hall's Death Penalty Clinic.
Noah Berger photo

For students at Boalt Hall learning criminal law in the field as well as the classroom, the news from Washington, D.C., was sweet indeed. By an 8-1 majority, the conservative-leaning court sided with a black Texas death-row inmate, Thomas Miller-El, in his claim that Dallas County prosecutors had systematically eliminated African Americans from his jury.

When Boalt opened its newest hands-on “clinic,” focusing on death-penalty cases, in summer 2001, Miller-El v. Cockrell was the first case accepted. In its Feb. 25 decision, the nation’s highest court validated the clinic’s assessment regarding the importance of the case to the integrity of the justice system.

“Early on, when my client was facing an execution date, it was the Berkeley clinic that came to our aid,” says Miller-El’s attorney, Jim Marcus. “First by persuading the Supreme Court to hear the case, then by writing a terrific amicus brief and engaging support of prominent former judges and prosecutors.”

Beating the odds
The Death Penalty Clinic, responding to the critical shortage of qualified lawyers for persons facing capital punishment, represents a small number of such clients nationwide in their post-conviction appeals. It also assists the defense team in cases like Thomas Miller-El’s, where what is at stake is both the life of an individual and, it believes, the administration of justice in general.
Was justice served?
Jury selection practices questioned in Miller-El v. Cockrell

When the clinic’s two attorneys, Professors Elisabeth Semel and Charles Weisselberg, told students they wanted their help in taking Miller-El to the Supreme Court, “there was a certain skepticism” that the court would agree to hear it, Semel, the program’s director, recalls. “That attitude was not unfounded. What are the odds?”

Extremely small, in fact. Out of more than 7,000 cases on its docket each year, the high court agrees to a full review (with oral arguments) of only about 100. “We were extremely lucky and, frankly, wise,” says Semel of the strategy the clinic pursued to get the court’s attention. “We thought carefully about what voice to speak with, and which lawyers should represent that voice.” Miller-El had an execution date in the state that conducts more executions than any other jurisdiction in the Western world, and “there was little likelihood of preventing his execution if the court did not take the case.”

Students in the clinic contributed hundreds of hours to framing arguments, drafting two amicus (friend of the court) briefs, and lining up prominent signatories. “It was an amazing experience for a law student to have,” says Racheal Turner ’02, a clerk for an Alaska Supreme Court justice, who spent much of her final year at Boalt working on Miller-El. On hearing the news, she was “more excited than surprised,” she says. “I truly believed in our cause — preserving the right to an impartial jury, especially for those on trial for their lives.”

Paper and porches
The Death Penalty Clinic is a one of three programs — along with clinics on international human rights and on law, technology, and public policy — that Boalt offers through its Center for Clinical Education. Students there spend their second or third year working on the clinic’s cases under the supervision of Professors Semel and Weisselberg “At first they’re overwhelmed by the size of a case and the complexity of the law,” says Weisselberg, who directs the center. But “they just dig in. It’s fabulous to see.”

Few students, at first, appreciate the complexity of capital law or the amount of paper involved. Merely filing and organizing the documents — thousands of pages’ worth — in a way that helps make sense of a case is something lawyers grapple with. “Students develop a hard-won appreciation for documents and the fact that they matter,” says Semel. “It’s such an enormous advantage when you go into the world and get dropped into this as a lawyer.”

Even small successes — locating a missing witness, or getting the support of a courthouse clerk — generate excitement. Other work takes students into the field with a professional investigator, to interview family members or witnesses. A few have direct contact with a client on death row. The clinic typically picks a single student to visit a death-row inmate over the course of the year, “so the client knows it’s a student who’s invested,” Semel says. In states like Alabama, especially, the prisoner may not have seen a lawyer in years. “We’re very, very conscious that these are our clients, not part of a study,.” she emphasizes.

For a student, the experience can be transforming. “I can’t think back to a student who wasn’t enormously moved by meeting one of the clients,” Weisselberg says.

Third-year student Erica Zunkel has made several trips to Alabama to interview the family of a man the clinic is representing. So much of what a capital case is about, she’s learned, is “understanding the place it happened” and “creating a picture of a client. “Sitting in class talking about theory is one thing,” but when you see how the law plays out in a particular locale, “it gives it a different meaning.”

Zunkel grew up in a small town in Washington state, and absorbing the atmosphere of northern Alabama has been “an incredibly meaningful experience,” she says, despite people’s initial stereotypes about Berkeley — and the challenges of finding vegetarian fare. “I once ordered a cheeseburger without the burger. It’s quite a mystifying order in Alabama.”

For Semel — who was a criminal-defense lawyer for more than 20 years, and then worked for the American Bar Association, helping to get major law firms to take death-penalty cases in the South — one of the most important lessons to impart to clinic participants is how to be a respectful guest “in somebody else’s home.” Using simulation exercises in the classroom, students practice how to comport themselves in the field. When approaching witnesses, the client, or the family, for instance, “you stand on the porch,” figuratively or literally, “until you’re invited in,” says Semel. “You need to be respectful of the cultural situation…. I’m used to going into unfamiliar neighborhoods; it’s second nature. But going with students makes me remember what it was like to have that experience for the first time.”

Clinic students, she’s found, are incredibly inquisitive and respectful learners. “They embrace the enormous responsibility of representing clients facing the death penalty, and leave not only with new skills, but with a commitment to using these skills on behalf of individuals who have historically been denied access to vigorous and capable advocates.”

For information on the Boalt Hall Death Penalty Clinic, its cases, and the Supreme Court decision in the Miller-El case, see law.berkeley.edu/cenpro/clinical/deathpenalty.html.

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