Clinic News

Arnold & Porter Gift Funds Death Penalty Clinic Fellowship Arnold & Porter has announced it will fully fund the Clinical Teaching Fellowship at Berkeley Law’s Death Penalty Clinic for the current fiscal year. The law firm’s generous gift of $114,000 recognizes the clinic’s critical contribution to a court case that invalidated California’s three-drug lethal injection protocol. The 2013 ruling in Sims v. Department of Corrections and Rehabilitation held that the agency failed to comply with the state’s Administrative Procedure Act (APA) when it altered its execution regulations. As a result, the appellate court invalidated the protocols in their entirety.  The landmark ruling culminates four years of work by clinic faculty and students, as well as the clinic’s Lethal Injection Project staff attorneys. They all worked closely with Arnold & Porter, which represented the plaintiff in the case. To read the full story, click here. (9/14) 

Death Penalty Clinic's Legal Win Helps Shape Criminal Law. 
Berkeley Law’s Death Penalty Clinic scored a huge victory in June when the California Court of Appeal gave one of its clients access to a district attorney’s records through the California Public Records Act, issuing its first published opinion on the issue. The court rejected the prosecutor’s argument that death-sentenced individuals are not “persons” entitled to equal access to public records.  Professor Elisabeth Semel, the DPC's Director, argued the case in the appellate court.  DPC students Paul Meyer ’14, Amanda Rogers ’14, and Colleen Bazdarich '13 worked extensively on the case, conducting legal research, drafting briefs and helping Semel prepare for oral argument.  To read the full story, click here. (7/14)

Why Oklahoma Matters in California Professor Elisabeth Semel writes in the Los Angeles Daily Journal, "Those who are chomping at the bit for California to resume executions would do well to pay heed not only to last week's debacle in Oklahoma, but also to the botched executions that took place in other states over the past few months.  They would would be wise to recall U.S. District Judge Jermey Fogel's conclusion in December 2006, that there were 'substantial questions' about whether six of the 11 men executed at San Quentin were conscious when they were injected with the paralytic and heart-stopping drugs."  To read the full op-ed, click here. (5/14)

Doctors Can and Do Participate in Executions Professor Ty Alper writes in the New York Times, "I am an opponent of the death penalty who believes that capital punishment has always said more about the society that imposes it than the individuals who are subjected to it...That said, the popular conception that doctors 'cannot' participate in executions is simply untrue.  They can, and they do." To read the full op-ed, click here. (5/14)

Jesus Mosqueda '14 Wins Sax Prize for Clinical Advocacy "For Jesus Mosqueda ’14, the winner of this year’s Berkeley Law Sax Prize for Clinical Advocacy, helping clients at two legal clinics meant seeing his own life at every turn... Mosqueda assisted in the defense of two clients facing capital punishment. His responsibilities have included reviewing trial records, interviewing clients and witnesses, examining evidence, working with experts, and preparing an amicus curiae brief to the U.S. Supreme Court on implicit bias in jury selection." To read the full story, click here. (5/14)

Death Penalty Clinic Challenges Jury Selection in Amicus Brief  "In an effort to shine a light on discriminatory jury selection practices, Berkeley Law’s Death Penalty Clinic filed a friend of the court brief in support of a California man’s petition for writ of certiorari in the U.S. Supreme Court. Filed on behalf of the National Congress of Black Women and the Black Women Lawyers Association of Los Angeles, it was the first amicus brief in a criminal case for both groups, according to Professor Elisabeth Semel, director of the Death Penalty Clinic, who serves as lead counsel. To read the full story, click here. (12/13).  

Use of Race in Peremptory Challenges Before Justices Writing about George Williams's petition for certiorari to the U.S. Supreme Court, the National Law Journal's Marcia Coyle featured the Clinic's amicus curiae brief on behalf of two prominent African-American women's organizations as well as comments by the Clinic's director, Professor Elisabeth Semel.  Coyle wrote that Williams's cert. petition "is asking the justices to put teeth into appellate review" of Batson challenges.  The amicus brief in support of Mr. Williams's petition focuses not only on the prosecutor's peremptory challenges of five of six qualified African-American prospective jurors, but also on the trial judge's comment that she has "'found that black women are very reluctant to impose the death penalty.'" Professor Semel explained that the judge's use of a race- and gender-based stereotype cannot be reconciled with Batson's requirement that jurors be evaluated as individuals, not members of a particular group. To read the full story, click here. (12/13)

Clinic Students Play Vital Role in Capital Case "The outcome was bittersweet: life without parole for a condemned man. But for seven Death Penalty Clinic students, it was a hard-fought victory. It all began two years ago, when the clinic agreed to work on the case of Jose Briseño, a Texas man condemned to death for fatally shooting a county sheriff. The 1992 conviction was not at issue, but the penalty was. After about twenty years of litigation, and Briseño’s nearly two decades on death row, the Texas Court of Criminal Appeals called for a new penalty trial, citing flawed instructions to the jury."  To read the full story, click here. (5/13)


Students' Life-or-Death Fight for Fairness Continues "
Throughout the past school year, students in Boalt's Death Penalty Clinic busily upheld its longstanding fight for fair proceedings in capital cases- a fitting tribute for the clinic's 10th anniversary celebration in April." Read the full article here. (Spring 2012)

Death Penalty Clinic Alums Rack Up Legal Victories
"Three former students from Berkeley Law's Death Penalty Clinic have recently won impressive victories representing criminal defendants in pro bono cases. Rachael Turner '02, Van Swearingen '08, and Sarah Weiss '10 credit the clinic for providing the training needed to assume major responsibilities in the cases- and for developing core skills they use regularly in all aspects of their legal practice." To read more, click here. (6/12)

Is the SAFE initiative vote safe?
"The Savings, Accountability, and Full Enforcement for California Act, or as it is more popularly known, the SAFE California initiative, easily qualified for the next general election. The initiative has a broad base of support. Over 800,000 citizens signed to put it to a vote in November. This is one of the simplest and most straightforward criminal justice initiatives in memory. There is nothing hidden from the public about its contents or purpose. Everyone knows what the SAFE California initiative will do: it replaces the death penalty with the alternative sentence of life without parole, and uses some of the resulting savings (estimated at $100 million a year) to fund local law enforcement and district attorney agencies to increase the rate at which murder and rape cases are solved." To continue reading Elisabeth Semel's article, click here. (6/12)

Since When Don't We Put a Price Tag on Justice?
"Faced with unassailable evidence that the death penalty in California costs hundreds of millions of dollars per year, death penalty supporters tend to respond with what is intended to be a conversation stopper: 'You can't put a price tag on justice.'" To continue reading Ty Alper's article, click here. (5/12)

Berkeley Law Death Penalty Clinic Celebrates its 10th Anniversary
"More than 60 Berkeley Law alumni gathered last month to celebrate the 10th anniversary of the Death Penalty Clinic and a decade of student accomplishments. The festivities included a dinner reception, a family picnic in Tilden Regional Park, and a fundraising campaign in which an astounding 99 percent of clinic alumni raised more than $18,000." To continue reading, click here (5/12)

Alison Mollman '12 Wins Sax Prize for Excellence in Clinical Advocacy
"Ever since the third grade, Alison Mollman '12 says her "dream job" was to become a lawyer. Sixteen years later, with a law degree almost in hand, the path toward that dream job took a happy turn when she received the Brian M. Sax Prize for Excellence in Clinical Advocacy." For more, click here. (4/12)

Fellowships Awarded to Death Penalty Clinic Rising Stars
"For a decade, the Death Penalty Clinic (DPC) has trained students to pursue the highest standards of criminal representation both during and after their studies at Berkeley Law. Three of them- two alumni and one current student- just parlayed that training into prestigious two-year fellowships." Continue reading here. (1/12)

Lifeline for Capital Cases
"For defense attorneys, success in a capital case is not always synonymous with acquittal. In many cases, convincing a prosecutor to forgo the death penalty for a negotiated plea counts as a solid victory. However, the pervasive lack of funding for the defense, especially in Southern states, all too often precludes the vigorous investigations that would give prosecutors reasons to take death off the table." To continue reading, click here. (Spring 2011)

Why the Execution of a White Supremacist Murderer Matters Too
"Wednesday night, two men were executed. Georgia executed Troy Davis, an African-American man whose guilt in the 1989 murder of a white police officer was very much in doubt. And Texas executed Lawrence Brewer, a white supremacist who was unquestionably guilty of the gruesome dragging death slaying of a black man in 1998. In my mind, the two executions are tragedies of essentially equal proportion." For more, click here. (9/12)

Clinic Alum Maile Padilla '10 Wins Prestigious Fellowship to Help Indigent Clients
                            Clinic alum Maile Padilla '10 is one of three recipients nationwide of the prestigious E. Barrett Prettyman Fellowship. The Prettyman Fellowship is a two-year program run by the Georgetown University Law Center's Criminal Justice Clinic.  In the first five weeks, fellows engage in a rigorous study of criminal law, criminal procedure, evidence, and trial practice. Thereafter, they represent indigent clients in criminal cases in D.C. Superior Court, starting with misdemeanor cases and progressing to felonies.  In the second year of the fellowship, they supervise third-year clinical law students who are representing clients facing misdemeanors.  Clinic Director Elisabeth Semel is confident that the Prettyman selection committee made a wise choice, calling Padilla’s work “breathtaking in its scope, detail, and creativity.” She added that “from her first day in the clinic, Maile took the initiative in a way that we hope to see at the end of the clinical training, and never expect to see at the beginning. She’s one of the most self-sufficient and resourceful students whom I have ever supervised.”  For more, click here.  (7/11)

Clinic Receives Major Award from Death Penalty                                                                              Berkeley Law’s Death Penalty Clinic has received the 2011 Abolition Award from Death Penalty Focus (DPF), a large nonprofit dedicated to eradicating capital punishment. Clinic Director Elisabeth Semel, joined by Associate Director Ty Alper, staff, and clinic alumni Erica Zunkel ’02 and Nisha Shah ’05, accepted the honor May 12 at DPF’s annual awards dinner in Beverly Hills.  After accepting the award, Semel told the audience the clinic is “transformative for our students, who they are, how they fit in the struggle for social justice, and what responsibility they have as members of the legal profession.” She said their experience provides “a tangible sense of the difference they can make in the lives of clients who need, but are often denied, vigorous representation.”  For more, click here. (5/11)

Clinic Student Ellen Rheaume '11 Awarded Sax Prize Honorable Mention                                            Clinic student Ellen Rheaume '11 was awarded an Honorable Mention at the 2011 Brian M. Sax Prize luncheon for her outstanding work on four of the Clinic's capital cases over the course of her two years in the Clinic.  Introducing Ellen at the luncheon, the Clinic's Supervising Staff Attorney, Kate Weisburd, noted that Ellen intends to represent indigent death row inmates upon her graduation.  "Just as she has done in the Clinic," Weisburd remarked, "Ellen will represent her future clients with zeal, compassion, and brilliance, pursuing every possible claim, and leaving no stone unturned."  For more, including photographs from the luncheon, click here.  (4/11)

Clinic Associate Director Wins Award for Article on Doctor Participation in Executions
Clinic Associate Director Ty Alper recently won the Ray L. Casterline Award for Excellence in Writing from the Federation of State Medical Boards.  The Award is given for the most outstanding article published in the Journal of Medical Regulation during the previous year.  Ty won the award for his article "The Role of State Medical Boards in Regulating Physician Participation in Executions," which examines the legal authority of state medical boards to discipline doctors for participating in executions, and concludes that in most, if not all, states, doctors may not be disciplined for participating. To read the article, click here.

Clinic Director Exposes Politics Behind Push to Resume Executions in California
Clinic Director Elisabeth Semel has argued in an op-ed in the Los Angeles Times that recent efforts to resume executions in California - despite the numerous legal challenges pending in state and federal courts - are a "reminder that electoral politics is . . . an engine driving our state's capital punishment system."  Although the state is in financial crisis, she writes, neither major candidate for Governor this election season "has been willing to ask whether Californians want to spend the financial or moral capital it will take to execute the 700 men and women who have been sentenced to death."  To read the entire piece, click here.

Atteeyah Hollie '10 Wins Sax Prize for Excellence in Clinical Advocacy
At a luncheon April 19, Atteeyah Hollie ’10 received the Brian M. Sax Prize for Excellence in Clinical Advocacy. Established in memory of Sax ’69, the annual prize is awarded to the graduating Berkeley Law student who has best displayed excellence in advocacy and professional judgment on behalf of clients while participating in a legal clinic.

Hollie was jointly nominated by the Death Penalty Clinic and the East Bay Community Law Center (EBCLC), as well as by several fellow clinical students. A faculty committee selected her from a group of nominees from the law school’s various clinics.

At EBCLC Hollie worked in the Clean Slate Practice, which provides free legal services to low-income clients with criminal records who are attempting to fully reenter society as productive members. Supervisor Eliza Hersh ’05 describes her as “very smart, hardworking, unfailingly reliable, and always professional,” and says she “effectively and ethically advocated for her clients.”

At the Death Penalty Clinic, Hollie worked under director Elisabeth Semel on an Alabama capital murder case. Her assignments focused on developing a claim against the prosecutor for using the majority of his peremptory challenges against prospective women jurors.

“I knew coming into the clinic that discrimination in jury selection was unconstitutional,” Hollie says. “What I didn’t know was how to make this rule work for a client whose capital trial was tainted by discrimination. I soon found myself working on a number of unfamiliar fronts to show that our client was entitled to a hearing, and hopefully a new trial.”

Semel says Hollie was “undaunted, resourceful, and professional in dealing with the bureaucratic challenges” as well as “unfailingly level-headed and focused” in pushing to find solutions.

Three other students received Sax Prize honorable mention: Suzanne Martindale ’10 for her work defending evictions and promoting housing rights at EBCLC’s Housing Practice, Maile Padilla ’10 for developing a client’s life history at the Death Penalty Clinic, and Shane Witnov ’10 for his accomplishments regarding law enforcement surveillance of social networking sites and online media privacy at the Samuelson Technology Law & Public Policy Clinic.

In her acceptance speech, Hollie, who will work at the Southern Center for Human Rights in Atlanta after graduation, made a point to turn the spotlight back on her clinical supervisors. “You provided the most supportive and inspiring work environments a lawyer-to-be could wish for,” she said. “Your commitment and tireless drive in working for equal justice is infectious.”  For photographs of the awards luncheon, click here.  For Atteeyah's speech, click here.

Clinic Director Publishes Article on Justice John Paul Stevens's Concurring Opinion in Baze v. Rees
Death Penalty Clinic Director and Clinical Professor of Law Elisabeth Semel recently published "Reflections on Justice John Paul Stevens's Concurring Opinion in Baze v. Rees; A Fifth Gregg Justice Renounces Capital Punishment" in the UC Davis Law Review.  Through several lenses -- the Justice's capital punishment jurisprudence, his judicial philosophy, and changes in the Court's composition -- Professor Semel explores Justice Stevens's determination in Baze that the death penalty violates the Eighth Amendment. To view this article, click here.

Death Penalty Clinic Helps Virginia Man Avert Death Sentence
Six Death Penalty Clinic students played an instrumental role in securing a life sentence with the possibility of parole for Justin Slater, a mentally ill, 24 year-old Virginia man. Mr. Slater faced capital murder charges in two different Virginia counties for his role in the deaths of his ex-girlfriend and brother. Thanks to the Clinic’s efforts in the case, Mr. Slater no longer faces a death sentence, and instead will be eligible for parole at age 60.

Clinic Staff Attorney Kate Weisburd supervised students Tess Hand-Bender ‘10, Stephanie Clark ‘11, Raghav Krishnaprian ‘10, Joe Goldstein-Breyer ’11, Ellen Rheame ’10, and Sarah Ihn ’10, as they worked closely with Mr. Slater’s trial attorneys. The students spent countless hours both in Berkeley and Virginia getting the case in a position for a settlement. In the fall, the students reviewed hundreds of pages of documents and indentified witnesses who could describe and explain Mr. Slater’s history of mental illness. Along with Weisburd, the students traveled to Virginia and interviewed dozens of witnesses, many of whom shed light on Mr. Slater’s long-standing mental illness and his mental state at the time of the crimes. The students also wrote legal memoranda and pretrial motions, and helped the attorneys develop and assess potential trial theories. All of this work was used to negotiate a favorable plea, which was entered in court on February 19, 2010.

By working on Mr. Slater’s case, the students gained critical, real-life lawyering skills.  Stephanie Clark, a 2L, explained, “The skills that I learned while working on the Slater case – gathering and synthesizing the facts from confusing documents, building rapport with witnesses who didn't have a good reason to trust me, and organizing huge amounts of information about our client's personal life -- cannot be taught in a classroom.”  Tess Hand-Bender, a 3L, knows that she will be a better lawyer because of her participation in Mr. Slater’s defense. “As a student who is far more comfortable behind a computer screen doing legal research,” Hand-Bender said, “nothing could have been better for building my confidence and honing my skills as an advocate, than my work on the Slater case.”

When asked to discuss the role of the Clinic’s students, Mr. Slater’s lead counsel, Joseph Flood, said: “We couldn’t have had this result, this quickly, without the Clinic’s involvement.”  Flood explained that it would have been impossible to have interviewed the more than 50 witnesses who were relevant to understanding the pivotal mental health issues in the case without the students’ participation.  Flood also applauded the students’ “hard work and intimate involvement in the case which gave the defense team significant confidence in during plea negotiations.”

Clinic Submits Public Comment on Nebraska and Kentucky Lethal Injection Procedures
The Death Penalty Clinic recently submitted lengthy comments criticizing several aspects of the lethal injection procedures proposed by prison officials in both Nebraska and Kentucky. These are two of the several states that have been forced by courts to submit their proposed execution procedures through the Administrative Procedures Act (APA), in order to allow public input and debate regarding the manner that the states intend to execute people. As with the comments the Clinic previously submitted in California and Maryland, the Clinic's comments in Nebraska and Kentucky revealed egregious omissions and deficiencies in each state's procedures, including both states' continued insistence on paralyzing inmates before executing them. To read the comment submitted in Nebraska, click here. To read the comment submitted in Kentucky, click here.

Clinic Associate Director Publishes Two Articles Related to Physician Participation in Executions
Death Penalty Clinic Associate Director Ty Alper recently published "The Truth about Physician Participation in Lethal Injection Executions" in the North Carolina Law Review, which explores the role of doctors in lethal injection procedures, as well as the role of lawyers involved in lethal injection litigation . To view the article, click here.Ty also recently published "The Role of State Medical Boards in Regulating Physician Participation in Executions," in the Journal of Medical Licensure and Discipline, which examines the legal authority of state medical boards to discipline doctors for participating in executions, and concludes that in most, if not all, states, doctors may not be disciplined for participating. To view this article, click here.

Clinic Submits Public Comment on California and Maryland Lethal Injection Procedures
The Death Penalty Clinic has submitted lengthy comments criticizing several aspects of the lethal injection procedures proposed by prison officials in both California and Maryland. Both states were forced by courts to submit their proposed execution procedures through the Administrative Procedures Act (APA), in order to allow public input and debate regarding the manner that the states intend to execute people. The Clinic comments in both states revealed egregious omissions and deficiencies in each state's procedures, including both states' continued insistence on paralyzing inmates before executing them, and both states' inadequate reporting of the fiscal cost of implementing the execution procedures. To read the comment submitted in California, click here. To read the comment submitted in Maryland, click here.

Clinic Associate Director Admonishes State for Inhumane Lethal Injection Protocol
Clinic Associate Director Ty Alper recently published an op-ed in the San Jose Mercury News, pointing out that the procedures California intends to use for lethal injections would be illegal to use in animal euthanasia in this state. "If this method of killing is unconscionable for animals," Alper asks, "why does California insist on using it to execute people?" To read the entire piece, click here. To read Alper's recently-published law review article on this subject, click here.

Clinic Director Challenges Political Leaders to Show Courage on Death Penalty
Clinic Director Elisabeth Semel has argued in a recent op-ed in the Sacramento Bee that, in these difficult economic times, politicians in California show follow the lead of their counterparts in other states who have publicly questioned whether capital punishment is worth its enormous cost. "For decades, Democratic and Republican candidates for governor in California have stepped over each other to prove their capital punishment credentials," Semel writes. "But public support for the death penalty has dropped dramatically in this state. When money is in short supply here, we would be well served if courage and leadership were not." To read the entire piece, click here.

Clinic Assists in Securing Life Sentence in Alabama
Under the supervision of Death Penalty Clinic Fellow Kate Weisburd, Clinic students Tess Hand-Bender ‘10 and Gisselle Bourns ’09, were part of the legal team that secured a life sentence for a severely mentally ill defendant charged with capital murder in Montgomery, Alabama.  The case was set to go to trial in January of 2009.  However, in late November 2008, the State agreed to withdraw its request for the death penalty and accept a plea of guilty in exchange for a sentence of life without possibility of parole.  The Clinic played a key role in the positive resolution of this case.  The students spent countless hours reviewing hundreds of records and conducting important legal research.  Along with Weisburd, they also identified and consulted with a forensic expert and drafted numerous pretrial motions, which played a critical role in convincing the District Attorney to accept a life sentence in the case. 

The Clinic worked on the case with the two court-appointed attorneys in Montgomery, Alabama, William Blanchard and Jay Lewis.  Mr. Lewis remarked on the contributions that Kate, Gisselle and Tess made to the defense:  “I was particularly impressed with the quality of legal research done and the memoranda of law produced. They 'got it' from the beginning, and their work in that regard was spot on. . . . In Alabama, we are on the very buckle of the death belt. To achieve what we did in this case took creativity, but it also took giving an impression that we were well-prepared for trial. To that end, [the Clinic's] team was invaluable.” Mr. Blanchard wrote:  “Giselle and Tess, under Kate's supervision, produced some of the most useful reports that we had in the case, some of which included substantial and very helpful research on key legal points of Alabama law. My experience with Kate Weisburd and your program has led me to have the greatest respect, not only for Kate personally, but for the ability, competence, and dedication of the entire team.”

Clinic Fellow Reviews The Execution of Willie Francis For California Lawyer Magazine
Clinic Fellow Kate Weisburd reviewed Gilbert King's book, The Execution of Wilie Francis: Race, Murder, and the Search for Justice in the American South, for the December issue of California Lawyer.  The book, which describes the botched execution of Willie Francis in Louisiana in 1946 and the legal battle that ensued, "creates a compelling and memorable portrait of how poor people and people of color are treated by the criminal justice system". Read the full review here.

Clinic Director and Student Discuss the Work of the Clinic in Recent Interview
Clinic Director Elisabeth Semel and clinic student Desiree Ramirez were interviewed recently by the Very Rev. Alan Jones, Dean of San Francisco's Grace Cathedral, for the cathedral's weekly radio and television broadcast, The Forum.  During the interview, they discussed a range of issues regarding capital punishment nationally and in California, and the role of the clinic in providing representation for men and women facing capital punishment while at the same time offering an opportunity for students to develop outstanding legal skills.  Watch the interview here.

Clinic Hosts Film Screening of At the Death House Door and Discussion with Filmmaker and Journalists
On October 27, 2008, the Death Penalty Clinic hosted a screening of the documentary, "At the Death House Door".  The documentary is an intimate look at the death penalty in the state of Texas through the eyes of Pastor Carroll Pickett, who served 15 years as the death house chaplain to the infamous "Walls" prison unit in Huntsville and presided over 95 executions.  The screening was followed by a discussion with one of the filmmakers, Peter Gilbert, and the two award-winning journalists, Steve Mills and Maurice Possley, whose invstigative reporting is featured in the film.  Read the Daily Journal Article about the screening.  (10/08)

Clinic Alum Assists in Supreme Court Victory

Death Penalty Clinic Alum David Taylor '06, now an associate at Williams and Connelly, co-authored a merits brief on behalf of amicus National Association of Criminal Defense Lawyers in support of the petitioner in Cuellar v. United States. The brief cataloged the overly broad interpretations courts and the overnment have given to the federal money laundering statutes. On June 2, 2008 the Supreme Court ruled unanimously in favor of the petitioner, narrowing the scope of the federal money laundering statute governing international transportation of funds. (08/08)

Clinic Holds Second Annual Benefit
On July 17, 2008, clinic alums, supporters, family, and friends gathered for the Second Annual Benefit for the Death Penalty Clinic, hosted by Arguedas, Cassman, and Headley LLP and the Law Office of Ann C. Moorman. Last year's benefit raised enough funds to hire our first Clinical Fellow, Kate Weisburd, who has expanded the ability of the Clinic to serve as a resource for lawyers representing death row inmates, particularly in the South. This year's benefit was a wonderful success and supporters were entertained by live music and heard from Clinic Director Elisabeth Semel, Clinic alum Lisa Cisneros '07, and Clinic Fellow Kate Wesiburd. For photographs from the event, click here. For more information on the benefit, click here. (08/08)

Clinic Assists in Lenix Victory in California Supreme Court
On July 24, 2008, the California Supreme Court issued its opinion in People v. Arthur Lenix, S148029, holding that "evidence of comparative juror analysis must be considered in the trial court and even for the first time on appeal if relied upon by defendant and the record is adequate to permit the urged comparisons." Although the Court denied relief to Mr. Lenix, the ruling was a major victory in the litigation of Batson claims before the California Supreme Court.

Berkeley Law adjunct faculty Cliff Gardner and Larry Gibbs, and Professor Elisabeth Semel, the Clinic's Director, filed an amicus curiae brief in support of Mr. Lenix. The brief brought together the California State Conference of the NAACP, Rabbi Allen B. Bennett (President of the California Board of Rabbis), Dr. James Donahue (President of the Graduate Theological Union), Souleiman Ghali (founder of the Islamic Center of San Francisco), the Rev.Cannon Charles P. Gibbs (President of the United Religions Initiative), and Rev. Dr. Cecil L. Murray (former pastor of First A.M.E Church in Los Angeles and currently the John R. Tansey Chair in Christian Ethics at the University of Southern California). The amici, in their organizational and individual capacities, have a long-standing interest in the elimination of discrimination -- whether based upon race, gender, religion or any other constitutionally impermissible factor -- in the state and the nation's democratic institutions. The brief advanced both the constitutional right of an accused to a jury selected free of race discrimination and the right of all citizens to participate in jury service. Read more.

Read the Daily Journal article on the Clinic's involvement in Lenix.

Read Clinic Director Elisabeth Semel's commentary in the Daily Journal on the Lenix opinion here.

Clinic Featured in the Boalt Hall Transcript
The Clinic and its work in the Baze lethal injection case was featured in the Spring 2008 edition of the the Boalt Hall Transcript. The article discusses both the amicus brief filed by the Clinic and the Lethal Injection Web-Based Clearing House, http://www.lethalinjection.org/. Read the article here. (05/08)

Clinic Files Amicus Brief in California Supreme Court on behalf of the California NAACP and Prominent Denominational Leaders
On April 28, 2008, Death Penalty Clinic Director Elisabeth Semel joined two Berkeley Law adjunct professors, Cliff Gardner and Larry Gibbs, in filing an amicus brief in the California Supreme Court in support of Arthur Lenix, who was convicted of murder in Kern County. The brief, which was filed on behalf of the California Conference of the NAACP and five prominent denominational leaders, concerns the procedures by which California courts determine Batson motions, that is motions arguing that a party exercised a peremptory challenge against a prospective juror based upon race or some other constitutionally impermissible factor. At issue is a particular method -- known as "comparative juror analysis." --of demonstrating that a strike was exercised based upon race or for other prohibited reasons. The amicus brief argues that Mr. Lenix should be permitted, based upon the record of the jury voir dire, to present a comparative juror analysis for the first time in the appellate courts. The case, People v. Lenix, S148029, is scheduled for oral argument on May 27, 2008 in San Francisco. Read more here. (4/08)

US Supreme Court Rules In Favor Of Snyder
On March 19, 2008, the Supreme Court, in a 7-2 decision, ruled in favor of Allen Snyder's Batson claim in Snyder v. Louisiana. The Clinic and the firm of Wilmer Hale co-authored an amicus brief on behalf of the Constitution Project in support of Allen Snyder. Two Clinic students, Desiree Ramirez and Armilla Staley, and Clinic Fellow Kate Weisburd worked on the brief with Professor Elisabeth Semel, and attended oral argument in December 2007. Read the Supreme Court's decision here. (03/08)

Clinic Associate Director Publishes New Article on Lethal Injection
In a recent article published in the Harvard Law and Policy Review, Clinic Associate Director Ty Alper argues that states should develop lethal injection protocols with input from relevant experts and in full view of the public. The article, "What Do Lawyers Know About Lethal Injection?” highlights the attempts by states to avoid public scrutiny by putting lawyers in charge of protocol revision. (03/08)

Clinic Director Testifies Before California Commission
Professor Elisabeth Semel, Director of the Death Penalty Clinic, testified before the California Commission on the Fair Administration of Justice (http://www.ccfaj.org/) on February 20, 2008 regarding the failure of the state to adhere to the guidelines established by the American Bar Association for the Appointment and Performance of Counsel in Death Penalty Cases. She testified that, based upon recent U.S. Supreme Court decisions, the ABA Guidelines "now carry the weight of constitutional authority." Quoting from those opinions, she told the Commissions that the Guidelines "'set forth a national standard of practice for the defense of capital cases,'" with which states must comply. Professor Semel testified at the second of three public Commission hearings regarding the state's capital punishment system. Death Penalty Clinic student Armilla Staley-Ngomo assisted in the preparation of Professor Semel's testimony. The mandate of the Commission is to examine the causes of wrongful convictions and to make recommendations to insure that the administration of justice in California is just, fair, and accurate. Video and transcript of the of the hearing is availble here. Read Professor Semel's written testimony.

Semel and Death Penalty Clinic Win Legal Service Award
The National Coalition to Abolish the Death Penalty awarded Clinic Director Elisabeth Semel and the Death Penalty Clinic one of its 2008 Legal Service Awards at its Annual Conference in San Jose, California.  Click here for more information and a list of the other awardees. (01/08)

Clinic Faculty and Students Attend Baze Argument
Clinic faculty and students made the trip to the Supreme Court earlier this month to watch the arguments in Baze v. Rees, and participate in the media efforts related to the case.  In the photograph at right, the Clinic team poses on the courthouse steps after the argument.  Front row L to R: Ty Alper, Elisabeth Semel, Jen Moreno; back row L to R: Vanessa Ho, Mojgone Azemun, Joy Haviland.  For more information about the Clinic’s work on the lethal injection issue, click here. (01/08)

Clinic Faculty Appear in National Media to Discuss Problems With Lethal Injection
In the days leading up to the Supreme Court argument in Baze v. Rees, Clinic Director Elisabeth Semel and Associate Director Ty Alper discussed the problems with lethal injection in a variety of national media fora.  Semel was featured in a National Public Radio segment that ran the morning of the oral argument, and was quoted widely in the national press, including the New York Times, the Washington Post, and the Los Angeles Times.  Alper was also quoted widely in the national media, and appeared on C-SPAN’s Washington Journal the morning before the oral argument, with Roy Englert, who argued the Baze case for the State of Kentucky.  For a complete review of media reports on the Baze case, click here. (01/08)

Clinic Featured on Southern California Public Radio
The Clinic and its work on the Baze lethal injection case, as well as its work on behalf of Walter Rhone, was featured recently on Southern California Public Radio.  To listen to the piece, click here. (01/08)

Death Penalty Clinic Descends on D.C. for Snyder Argument
On December 4, 2007, Death Penalty Clinic Director Elisabeth Semel, Clinic Fellow Kate Wesiburd, and Clinic students Desiree Ramirez and Armilla Staley-Ngomo attended the Supreme Court argument in Snyder v. Louisiana, No. 06-10119. On behalf the Constitution Project, the Clinic and the law firm of WilmerHale filed an amicus curiae brief in support of the petitioner, Allen Snyder. This was the students' first visit to the Supreme Court. It was an exceptional educational opportunity for them to watch Stephen Bright argue the case on behalf of Mr. Snyder, adding another dimension to the students' hours of research and writing. The night before oral argument, Clinic alum Shannon Rozner ('02) hosted a dinner for Prof. Semel, the students, and clinic alum David Taylor ('05).

More information about the Snyder case, including the briefs and transcript of the oral argument are available here.

Clinic Associate Director Wins Angel Award
California Lawyer Magazine has selected Clinic Associate Director, Ty Alper, as one of 20 Angel Award Winners for his work on the case of Walter lee Rhone Jr., who was released from an Alabama prison after serving more than eight years following his conviction on capital murder charges. The magazine presents the annual award to lawyers who demonstrate a “fierce commitment to pro bono cases.’’ Alper took up the case of Walter Lee Rhone Jr. in 2004, when working as a staff attorney at the Southern Center for Human and brought the case with him when he joined the Clinic in 2004. Alper, working in conjunction with the SCHR and with the assistance of several clinic students, uncovered evidence of prosecutorial, judicial and juror misconduct in the trial. Mr. Rhone was granted a new trial and after negotiations for a "time served" plea, Mr. Rhone walked out of prison a free man on February 8, 2007.

Clinic Files Supreme Court Amicus Brief in Lethal Injection Case
Lethal injection executions in this country are performed by untrained, unqualified prison employees using inadequate equipment and following incomprehensible protocols, according to an amicus brief filed on November 13, 2007 by the Death Penalty Clinic.  The brief was filed in support of the Petitioner in Baze v. Rees, currently pending in the U.S. Supreme Court. 

The Clinic surveyed thousands of pages of documents from more than a dozen states, concluding that states have “turned a blind eye” to the foreseeable problems inherent in the three-drug lethal injection formula, and have allowed “ignorance and neglect – rather than science and deliberation – to guide the formation and implementation of lethal injection protocols.”  The Clinic filed the brief on behalf of death-sentenced inmates who are litigating lethal injection challenges in California, Missouri, Maryland, and Florida.  The brief, prepared with the assistance of the Clinic's Eighth Amendment Fellow, Jen Moreno, and two Clinic students, Joy Haviland and Vanessa Ho, begins by explaining the dangers inherent in the three-drug formula, and describes how the failure to correctly administer anesthesia to the inmate can result in an excruciatingly painful, and torturous, death.  The brief then details the widespread lack of professionalism and competency in the administration of lethal injection in this country.  For links to all of the briefing in the Baze case, as well as more information about lethal injection challenges, please go to http://www.lethalinjection.org/.  (11/07)

Clinic Files Petition for Certiorari on Behalf of Alabama Death Row Inmate
The Clinic recently filed a petition for certiorari in the U.S. Supreme Court on behalf of an Alabama death row inmate named Mark Jenkins.  Mr. Jenkins, convicted of capital murder and sentenced to death in St. Clair County County, Alabama, has been on death row for more than 16 years.  The Clinic’s petition, which was drafted primarily by Clinical Fellow Kate Weisburd, raised two issues in the Court: first, whether the number and race of jurors struck can, without more, establish a prima facie case of race discrimination in jury selection, and second, whether capital litigants in Alabama have a right to counsel in their appeals to the Alabama Supreme Court.  Click here to see the petition. (10/07)

Clinic Alum Helps Persuade Supreme Court to Review Money Laundering case
Clinic alum David Taylor ’06, now an associate at Williams and Connolly in Washington, D.C., co-wrote a brief on behalf of amicus curiae National Association of Criminal Defense Lawyers urging the Supreme Court to grant certiorari in Cuellar v. United States, No. 06-1456, a case turning on the meaning of the word "conceal" in the Money Laundering Control Act of 1986.  The brief cited numerous overbroad interpretations of that word by both prosecutors and courts, which have led to unintended and unjust results.  The Court granted review on October 15, 2007 and is likely to issue a ruling in 2008. (10/07)

Clinic Welcomes First Post-Graduate Fellows
Two post-graduate fellows have joined the staff of the Death Penalty Clinic. Jen Moreno is a 2006 graduate of Berkeley Law, and joins the Clinic as its first Eighth Amendment Fellow. Jen spent the past year engaged in policy advocacy for the homeless. While at Berkeley Law, Jen’s areas of interest were homelessness and capital defense. She completed a one-year internship at the California Office of the State Public Defender working on death penalty cases. Jen will be developing the Clinic’s lethal injection resources webpage, http://www.lethalinjection.org/, and will work in collaboration with lawyers and other professionals who are litigating lethal injection challenges across the country. Kate Weisburd joins Berkeley Law as the first Death Penalty Clinic Fellow. Before attending Brown University, Kate spent 2 years as a capital case investigator at the Southern Center for Human Rights in Atlanta. Kate is a 2005 graduate of Columbia Law School where she received several public interest fellowships, which enabled her to intern at the Public Defender Service in Washington, D.C., the NAACP-Legal Defense Fund and the Brennan Center for Justice. She arrives from a two-year clerkship with Judge Lawrence Karlton (U.S. District Court, E.D. Calif.). Over the next two years, Kate will be expanding the Death Penalty Clinic’s docket by working on death penalty cases, particularly in the South, where lawyers are often unqualified and under-resourced, as well as taking on projects that engage the Clinic in systematic challenges to aspects of capital punishment. (09/07)

Clinic Files Supreme Court Amicus Brief in Louisiana Capital Case
On September 5, 2007, the Clinic and WilmerHale filed an amicus curiae brief in the United States Supreme Court on behalf of the Constitution Project in support of Allen Snyder, and African American on Louisiana's death row. The brief argues that the Louisiana Supreme Court, which upheld Mr. Snyder's conviction and death sentence, failed, under Batson v. Kentucky, to take into consideration all relevant evidence in determining whether the State had struck black jurors based upon their race.  The brief emphasizes the "unusual, unethical, and unconstitutional nature" of the prosecutor's references to O.J. Simpson during the trial as "powerful evidence of the prosecutor's discriminatory intent to use his peremptory challenges to purge Mr. Snyder's capital jury of all African Americans."  On behalf of the Constitution Project, the Clinic and WilmerHale argue that the prosecutor's violation of the rule in Batson requires that the Louisiana Supreme Court's judgment be vacated. Two Clinic students, Desiree Ramirez and Armilla Staley, and the Death Penalty Clinic Fellow, Kate Weisburd, worked on the brief with Professor Elisabeth Semel. Oral argument in the case has not yet been set. For more information and to see the relevant opinions and briefs in the case, click here. (09/07)

Freed Clinic Client Featured at First Annual Clinic Benefit
On July 19, 2007, the Death Penalty Clinic celebrated the release of one of its clients, Walter Rhone. The occasion was the First Annual Benefit for the Clinic, which was hosted by Arguedas, Cassman, and Headley LLP and the Law Office of Ann C. Moorman. Mr. Rhone, who walked out of an Alabama prison on February 8, 2007 after serving eight years of a life without parole sentence on a capital murder conviction, was a client of the Clinic and the Southern Center for Human Rights. He flew to California to meet, for the first time, some of the Boalt students who worked on his case. Clinic alums, supporters, family, and friends gathered to meet Mr. Rhone and hear from Dean Christopher Edley, Jr., Director Elisabeth Semel, Associate Director Ty Alper, and Clinic alum Shara Davis '04, now a Deputy Public Defender in Contra Costa County. "What you do for us, and what we learn from you, has made an extraordinary difference," Semel told the clinic alums in attendance. "You are heart of what we do." For photographs from the event, click here. For media accounts of Mr. Rhone's visit and photographs of his release from prison, click here. (08/07)

Clinic Assists in Alabama Supreme Court Victory
The Death Penalty Clinic has assisted in a major victory for Alabama death row inmates. In Ex Parte Clemons, __ So.2d __, 2007 WL 1300722 (Ala. May 4, 2007), the Alabama Supreme Court ruled that appellate courts may not invoke procedural bars to defeat prisoners' constitutional claims if the State has previously waived its right to rely on those bars. The landmark ruling will affect prisoners throughout Alabama, particularly those on death row, many of whom have valid constitutional claims that have been denied on purely procedural grounds. Death Penalty Clinic students became involved in the case in 2005, when David Taylor '06 worked under the supervision of Associate Director Ty Alper to assist Mr. Clemons' lawyers at Winston and Strawn, LLP in Washington, D.C., in drafting their brief to the Alabama Supreme Court. This year, Katy Miller '07 worked with firm partner Anne Stukes to prepare her for oral argument in the Alabama Supreme Court.

Clinic Associate Director Testifies in State Legislature Regarding "Secret" Execution Chamber
Ty Alper, Associate Director of the Death Penalty Clinic, testified on Tuesday, May 8 before the California State Senate Public Safety Committee, regarding the recent revelations about a new execution chamber being constructed at San Quentin Prison without the proper notice or authority from the Legislature. Alper's testimony provided the Committee with information about the challenge to lethal injection in California, litigation that apparently prompted prison officials to begin construction on the new execution chamber. In his testimony, Alper clarified for the Committee that the federal judge presiding over the lethal injection litigation had not ordered the construction of a new chamber, as prison officials had claimed. Click here for Alper's official statement to the Committee. Click here for an article in the L.A. Times about the hearing.

Clinic Student Mark Feeser Wins 2007 Sax Prize
For the second year in a row, a member of the Death Penalty Clinic has won the Brian M. Sax Prize for Excellence in Clinical Advocacy. The prize is awarded each spring to a graduating law student who has best displayed excellence in advocacy and professional judgment on behalf of clients while participating in a Boalt-sponsored legal clinic. This year, Mark Feeser '07 was recognized for his work in both the Death Penalty Clinic and the East Bay Community Law Center. Click here to read about Mark's accomplishments and to see photographs from the 2007 Sax Prize Award Luncheon. Click here to read Mark's speech at the Award Luncheon.

Clinic Victory Featured in The Berkeleyan
In its March 1, 2007 issue, The Berkeleyan featured the case of Walter Rhone, a client of the Clinic and the Southern Center for Human Rights, who was released from an Alabama prison in February after serving eight years following his conviction for capital murder. Click here for more photographs of Mr. Rhone's release. (03/07)

Clinic Student Lisa Cisneros Featured in Article About Clinical Education
Death Penalty Clinic student Lisa Cisneros '07 was recently featured in an article in The Recorder, a San Francisco daily legal newspaper, which profiled the prominence of clinical programs at Bay Area law schools. "Investigating, drafting briefs, doing legal research - none of those experiences jump out of a case book or out of a professor's lecture," Cisneros is quoted as saying in the article, which describes her as belonging to the "new crop of savvy students who know that they want more from their legal education." The article goes on to describe the recent expansion of Boalt Hall's clinical faculty, and the fact that law schools throughout the Bay Area are responding to increased demand for experiential learning opportunities. (02/07)

Clinic Client Released After Eight Years in Prison
The Death Penalty Clinic celebrated a monumental victory this month when Walter Rhone, a client of the Clinic and the Southern Center for Human Rights (SCHR), was released from an Alabama prison after serving more than eight years following his conviction on capital murder charges. Clinic Associate Director Ty Alper began representing Mr. Rhone three years ago, when he was a staff attorney at SCHR and Mr. Rhone was serving a sentence of life in prison without the possibility of parole. After joining Boalt's clinical faculty, Alper and the Clinic's co-counsel at SCHR, William Montross, won a landmark ruling in the Alabama Supreme Court, Ex Parte Rhone, 900 So.2d 455 (Ala. 2004), which allowed Mr. Rhone to pursue post-conviction relief. SCHR investigators subsequently uncovered prosecutorial, judicial, and juror misconduct that occurred during Mr. Rhone's 1999 trial in Bessemer, Alabama. Several Clinic students - including Jamie Popper '05, Laura Clark '05, Michael Lepie '06, and Angel Sevilla '05 - drafted memos and pleadings based on this investigation, which culminated in a ruling by Alabama Circuit Court Judge John E. Rochester granting Mr. Rhone a new trial. After negotiations for a "time served" plea following Judge Rochester's order, Mr. Rhone walked out of prison a free man on February 8, 2007, into the waiting arms of his mother, father, sisters, and children. Click here for photographs of Mr. Rhone's release. (02/07)

Clinic Alum Amanda Parks to Join Southern Center for Human Rights
Death Penalty Clinic Alum Amanda Parks '06, currently a public defender in Contra Costa County, CA, has accepted an offer to work as a staff attorney at the Southern Center for Human Rights (SCHR) in Atlanta, GA. Parks, the recepient of the 2006 Sax Prize for Excellence in Clinical Advocacy, will be representing death row inmates in Alabama and Georgia during trial, post-conviction, and federal habeas proceedings. She is the latest in a line of Clinic alums who have embarked on careers devoted to the representation of death row inmates, including Alma Lagarda '05 (Texas Defender Service), Sarah Rackley '06 (Fair Trial Initiative), and Nisha Shah '05 (Habeas Corpus Resource Center). (02/07)

Clinic Student Kristin Traicoff Wins National Writing Competition
Kristin Traicoff '07, a member of the 2006-2007 Death Penalty Clinic, has won the 2006 William W. Greenhalgh Student Writing Competition, a national writing competition sponsored by the American Bar Association's Criminal Justice Section. The award comes with a $2000 cash prize, a free year of membership in the Criminal Justice Section, an engraved plaque, and publication of her article in the ABA's Criminal Justice magazine. Traicoff's article, entitled "Closing Two Doors with One Hand," was written as an independent research project under the supervision of Visiting Acting Clinical Professor Ty Alper. The article explores the relationship between plain error review on direct appeal and review for prejudice in ineffective assistance of counsel claims raised in habeas proceedings.

Clinic Student Amanda Parks Wins 2006 Sax Prize
Death Penalty Clinic student Amanda Parks '06 is the 2006 recipient of the Brian M. Sax Prize for Excellence in Clinical Advocacy. The prize is awarded each spring to a graduating law student who has best displayed excellence in advocacy and professional judgment on behalf of clients while participating in a Boalt-sponsored legal clinic.

Parks was recognized for significant investigative and legal work on behalf of the Clinic's client on Alabama's death row. Parks took lead responsibility among clinic students for developing and maintaining the attorney-client relationship and helped conduct witness interviews and collect records. Along with making four trips to Alabama, she conducted extensive legal research and analysis in preparation for a hearing and drafted a brief to the Alabama Circuit Court.

Click here to see photographs from the Sax Prize Award Luncheon, which was held on April 17, 2006. Click here to read Parks' speech at the Award Luncheon.

Clinic Gets an "Assist" in 10th Circuit Victory
The Death Penalty Clinic has assisted in a major victory for capital defendants in the Tenth Circuit. The Clinic has been counsel in several cases that raised the question of whether people sentenced to death are entitled to lawyers in clemency proceedings and proceedings to determine whether they are competent to be executed. In these cases, the Clinic represented attorneys who were appointed under a federal statute on behalf of death-row inmates in Texas. Information about the clinic's litigation, including relevant pleadings, is available on the clinic's docket page.  In December 2002, the Supreme Court declined to review the petitions. However, the issue remains very much on the front burner of capital litigation. The Clinic's briefing was recently used by lawyers in the Tenth Circuit who successfully challenged the denial of counsel in state clemency proceedings in Oklahoma. On January 23, 2006, the Tenth Circuit in Hain v. Mullin issued an en banc decision, agreeing with the Clinic's position. The opinion is available here.

Death Penalty Clinic Director Criticizes Capital Punishment System in L.A. Times
Death Penalty Clinic Director and Clinical Professor of Law Elisabeth Semel's op-ed, "The death penalty doesn't pay," was published in the Los Angeles Times on January 13 prior to the scheduled execution of Clarence Ray Allen. "Two executions within a month is unprecedented," writes Professor Semel, "in a state that, until December, had carried out only 11 executions since 1977." The op-ed details substantive arguments against the effectiveness of death penalty as a deterrent of capital crimes, citing comparable cases where inmates were found guilty of death-eligible crimes but were not ultimately sentenced to death. Semel provides stunning examples of the extraordinary financial costs associated with the death penalty: Each of the 11 executions after 1977 cost Californians a quarter of a billion dollars; capital trials cost at least three times as much as non-capital murder trials; tens of millions of dollars are spent annually to pay for courts, prosecutors and defense counsel. Semel concludes that "our state would do immeasurably better by removing this albatross of enormous financial and psychic weight."

To read the complete opinion piece, visit the Los Angeles Times .

The Berkeleyan Interviews Professor Elisabeth Semel
In its December 1 issue, The Berkeleyan interviewed Death Penalty Clinic Director Elisabeth Semel about the death penalty in California. You can read the story by following the link below:

International Death Penalty Lawyer Speaks at Boalt Hall
Attorney Sandra Babcock, the lead lawyer in a high-profile legal struggle over the fate of more than 50 Mexican nationals awaiting execution in U.S. prisons, spoke at Boalt Hall on Wednesday, October 12.

Babcock, an attorney in private practice in Minneapolis, directs the Mexican Capital Legal Assistance Program, a project funded by the Mexican government to assist its nationals in capital cases at trial and on appeal. In that role, she was Mexico's counsel in an International Court of Justice case that challenged U.S. procedures in prosecuting Mexican nationals in capital cases. Specifically, Mexico v. United States (also known as Case Concerning Avena and Other Mexican Nationals) alleged that the United States had ignored its international treaty obligations and violated the rights of 52 condemned Mexican nationals by denying them consular notification and consultation after arrest and while they were awaiting trial. In 2004, the International Court of Justice found for Mexico in the case and directed the United States to review the convictions and sentences of these 52 individuals.

The event was open to the public and sponsored by Boalt's Death Penalty Clinic and International Human Rights Law Clinic.

Death Penalty Clinic Featured in the Boalt Hall Transcript
Professor Elisabeth Semel and the Death Penalty Clinic were featured in the Summer 2005 issue of the Boalt Hall Transcript. You can read the stories by following the links below.

Death Penalty Clinic Shares in U.S. Supreme Court Victory
On June 13, 2005, the U.S. Supreme Court granted relief to Thomas Miller-El, who had been convicted of capital murder and sentenced to death in Texas in 1986, Thomas Miller-El v. Dretke 03-9659.  The Death Penalty Clinic and the firm of Sidley Austin Brown & Wood had filed amicus curiae briefs in support of the petition for review and, after certiorari was granted, urging that the petitioner's conviction and death sentence be overturned. At issue was the prosecution's use of peremptory challenges to strike 91 percent of African Americans from the jury. Justice Souter, writing for a six-justice majority, concluded that the State's explanations for its strikes were "pretextual," noting that it "blinks reality" for the State to deny that it had challenged specific jurors because they were black.

The clinic and Sidley Austin filed four amici in this matter on behalf of former judges and prosecutors. Amici include former federal appellate court judges, a former deputy U.S. attorney general, a former F.B.I. director, former state attorneys general, former assistant U.S. attorneys, and the former district attorney of Boston. Amici joined in this effort because of their commitment to the principle that members of the bench and law enforcement officials bear responsibility for maintaining a justice system that honors the equal treatment of all people and instills trust in the public the system serves.

Three Death Penalty Clinic students, Racheal Turner, Jessica Simbalenko and Portia Glassman, worked on the briefs with Professor Elisabeth Semel, who was counsel of record in the Supreme Court for the amici.

Mr. Miller-El was sentenced to death in Texas in 1986, after the prosecution had used 10 of its 11 peremptory challenges to strike qualified African Americans from the jury. In his first petition for a writ of certiorari , Mr. Miller-El asked the U.S. Supreme Court to enforce the rule of Batson v. Kentucky, 476 U.S. 79 (1986), which prohibits racial discrimination in the exercise of peremptory challenges in jury selection. The clinic's first amicus brief was filed on behalf of a former federal appellate court judge and a former federal prosecutor. In February 2002, the Supreme Court agreed to hear Miller-El's case, and, in May 2002, the clinic filed an amicus brief in support of the petitioner's argument that his conviction and death sentence should be reversed. The amici included former federal and state court judges and former federal and state prosecutors.

In 2003, the Supreme Court, in an 8-1 opinion in Miller-El v. Cockrell, 537 U.S. 322 (2003), ruled that the 5th Circuit Court of Appeals had refused to consider Miller-El's Batson claim based upon a standard of review that was too demanding. It concluded that Miller-El had clearly demonstrated his case should be heard by the 5th Circuit. While the majority opinion did not reach the merits of the Batson claim, it engaged in a detailed review of the extensive evidence concerning the prosecution's jury selection practices and also criticized the lower courts' "dismissive and strained interpretation" of critical facts presented by Thomas Miller-El. Justice Kennedy's opinion modeled for the lower courts how Batson claims should be addressed.

In March 2004, the 5th Circuit again ruled that prosecutors had not intentionally excluded African Americans from Mr. Miller-El's capital jury. Miller-El v. Dretke, 361 F.3d 849 (5th Cir. 2004). A petition for a writ of certiorari was filed in Thomas Miller-El v. Dretke, 03-9659, and, on May 28, the clinic and Sidley Austin filed an amicus brief in support of the petition. Their brief argued that the 5th Circuit refused to follow the Supreme Court's directives regarding the constitutionally sanctioned mode of Batson analysis, and adopted instead an illogically truncated framework for review, which simply ignored key aspects of Mr. Miller's El's case. On June 28, 2004, the U.S. Supreme Court granted certiorari.

In September 2004, on behalf of amici, the clinic and Sidley Austin filed a brief in support of Mr. Miller-El's contention that his conviction and death sentence should be reversed. The amici urged that, in addition to the clear injustice in Mr. Miller-El's case, relief is necessary because the 5th Circuit's treatment of the Batson claim provides other courts with a road map for insulating discriminatory peremptory challenges from judicial scrutiny. They further argued that, left to stand, the lower court's decision would do grave damage to public confidence in our judicial system. The case was argued on December 6, 2004.

You can read articles on the decision in the San Francisco Chronicle or the ABA Journal for more information.

Links to opinions and pleadings in the case are available on the clinic's main page.

2005 Death Penalty Clinic Class Contributes $3000 as part of their Class Campaign
The Class of 2005 Death Penalty Clinic graduates presented Dean Edley with a check in the amount of $3,000.00, representing the money they raised as part of the 2005 Class Campaign and earmarked for the Death Penalty Clinic. The Boalt Hall Alumni Association matches class campaign gifts 2-to-1, so that the donation to the Clinic will total $9,000.00. Clinic 2005 graduates who also contributed but are not pictured are Emily Carlsen, Alma Lagarda, and Salomon Zavala.

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