The clinic has also 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. The federal courts found that the orders of appointment did not include assistance on the clients' applications for clemency to the Texas Board of Pardons and Paroles or in hearings about the clients' mental competency. The issue is important because Texas, like many other states, does not provide lawyers for clemency and competency proceedings. If the federal statute does not afford the right to counsel, the clients may be executed without anyone filing a request for clemency or sentence commutation or without anyone determining if the client is mentally fit.

In April and May 2002, the clinic filed two petitions for writs of certiorari asking the U.S. Supreme Court to take the cases, In re: Taylor and Harris and In re: Wischkaemper and Taylor . The National Mental Health Association and the Judge David L. Bazelon Center for Mental Health Law filed a brief as amici curiae , supporting the clinic's position. The amici were represented by former Acting Solicitor General Walter Dellinger and his colleagues at O'Melveny & Myers, Diana Torres and Erika Frick. The solicitor general opposed both petitions, and the clinic filed supplemental briefs. 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. The en banc decision of the Tenth Circuit in Hain v. Mullin, agreeing with the clinic's position, is available here.

The clinic's petitions and briefs are available below:

In re: Taylor and Harris:

• Petition for a Writ of Certiorari
• Motion for Leave to File Brief of Amici Curiae and Brief of National Mental Health Association and the Judge David L. Bazelon Center for Mental Health Law as Amici Curiae in Support of the Petition for a Writ of Certiorari
• Brief for the United States as Amicus Curiae
• Petitioners' Supplemental Brief

In re: Wischkaemper and Taylor

• Petition for a Writ of Certiorari
• Brief for the United States as Amicus Curiae
• Petitioners'Supplemental Brief

On July 24, 2008, the California Supreme Court issued its opinion in People v. Arthur Lenix, 44 Cal.4th 602 (2008), 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.

Arthur Lenix is African American. During jury selection, the prosecutor exercised five peremptory challenges; his last strike was against the only African American remaining prospective juror. The defense made an unsuccessful motion under Batson v. Kentucky, 476 U.S. 79 (1986), arguing that the strike was race-based. On appeal, to demonstrate the constitutional violation -- that Mr. Lenix had been denied a jury selected free of racial bias -- defense counsel, for the first time, compared the answers of white jurors whom the prosecutor did not strike to those of the black juror whom the prosecutor struck. This approach to evaluating the merits of a Batson claim, which is known as comparative juror analysis, was approved and employed by the U.S. Supreme Court in three opinions in which the Death Penalty Clinic also filed amicus curiae briefs. (Miller-El v. Cockrell, 537 U.S. 322 (2003); Miller-El v. Dretke, 545 U.S. 231 (2005); Snyder v. Louisiana, 128 S.Ct. 1203 (2008).

In each of the three cases, the U.S. Supreme Court conducted a comparative juror analysis for the first time on appeal. However, in the majority opinion in Snyder, Justice Alito pointed out that the Louisiana Supreme Court did not hold that Mr. Snyder had "defaulted" his right to a comparative juror analysis for failing to conduct one at trial, noting that the state supreme court had engaged in that analysis for the first time on appeal. This comment prompted the California Supreme Court to order supplemental briefing in the Lenix case on this very question: Must an appellate court perform a comparative juror analysis for the first time on appeal to evaluate the genuineness of the prosecutor's reasons for peremptorily challenging prospective jurors? In its July 24 opinion, the state supreme court answered the question in the affirmative, with a caveat that "the record is adequate to permit the comparisons."

In the amicus brief, Cliff Gardner, Larry Gibbs, and Professor Elisabeth Semel, the Clinic's Director, traced the California Supreme Court’s “history of adjustments” to comparative juror analysis. They argued that the results in the Miller-El cases and in Snyder are “consistent with longstanding California appellate procedure. Under that state law precedent, an appellant may make a new argument on appeal if it is based on facts in the trial record. The brief also presented “sound practical reasons” to permit comparative juror analysis for the first time on appeal.

For nearly two decades, the California Supreme Court had resisted undertaking a comparative juror analysis. See, People v. Johnson, 47 Cal.3d 1194, 1221 (1989). Even after the U.S. Supreme Court's explicit reliance on a comparative juror analysis, which was conducted for the first time in post-conviction proceedings in Miller-El I and Miller-El II, the state supreme court held fairly steadfast. Following Miller-El I, the California Supreme Court conceded that where a comparative juror analysis had been undertaken at trial, it could be part of the Batson inquiry on appellate review. See, People v. Johnson, 30 Cal.4th 1302, 1321-1323 (2003). In the wake of Miller-El II, the state supreme court performed a comparative juror analysis for the first time on appeal in more than a half dozen cases. However, it did so with the proviso that the Court was "[a]ssuming without deciding that comparative prospective juror analysis for the first time on appeal is constitutionally required." See, e.g., People v. Huggins, 38 Cal.4th 175, 232 (2006).

In Lenix, the California Supreme Court concluded that it was not prepared discern the meaning of Snyder's foonote two "without further guidance from the Supreme Court." It agreed, however, that its "former practice of declining to engage in comparative juror analysis for the first time on appeal unduly restricts review based on the entire record."

Motion for Permission to Appear As Amici
Brief of Amici Curiae, the California Conference of the NAACP, et al.

Application to File Brief of Amici Curiae California Public Defender Association (CPDA) and California Attorneys for Criminal Justice (CACJ)
Letter Brief of Amici Curiae CPDA/CACJ
Amicus Curiae Letter Brief of the Office of the State Public Defender
Amicus Curiae Letter Brief of the Habeas Corpus Resource Center

Opinion

 The Clinic has taken a lead role in the advocacy related to the Supreme Court’s decision to review challenges to lethal injection as a method of execution, in Baze v. Rees. In addition to the lethalinjection.org website developed and maintained by the Clinic’s Eighth Amendment Fellow, Jen Moreno, the Clinic filed an amicus brief in the case on behalf of death row inmates in California, Missouri, Maryland, and Florida; created an extensive Resource Kit for members of the press; and prepared a cross-referenced and linked “Q and A” document for the press and the public. For more information about lethal injection challenges, please go to http://www.lethalinjection.org/.

On March 19, 2008, the United States Supreme Court reversed the conviction and death sentence Allen Snyder. Snyder v. Louisiana, No. 06-10119. On September 5, 2007, the Death Penalty Clinic and WilmerHale filed an amicus curiae brief in the Supreme Court on behalf of the Constitution Project in support of Mr. Snyder. Two Death Penalty Clinic students, Desiree Ramirez and Armilla Staley, and the Clinic Fellow, Kate Weisburd, worked on the amicus brief with Professor Elisabeth Semel. At issue was the prosecutor's exercise of peremptory challenges to remove African Americans from the trial jury in violation of Batson v. Kentucky, 476 U.S. 79 (1986), which prohibits racial discrimination in the exercise of peremptory challenges in jury selection.. In a 7-2 opinion authored by Justice Samuel Alito, the Court held that "the trial court committed clear error in overruling petitioner's Batson objection with regard to [one of the African-American jurors]."

Mr. Snyder, who is African American, was tried by an all-white jury, convicted of capital murder and sentenced to death in 1996 in Jefferson Parish, Louisiana. Mr. Snyder was arrested the year before, and charged with the murder of his estranged wife's male companion. Mr. Snyder's trial took place less than a year after O.J. Simpson was acquitted of murder in California. Prior to Mr. Snyder's trial, the prosecutor publicly referred to Mr. Snyder's case as "his O.J. Simpson case." During jury selection, the prosecutor used his peremptory challenges to strike all qualified prospective African Americans from the panel. Despite his promise to the trial judge that he would not refer to O.J. Simpson before the jury, the prosecutor, in his rebuttal penalty phase argument, compared Mr. Snyder's conduct to that of the defendant in "[t]he most famous murder case" that all the jurors "have heard about," pointing out that the "perpetrator" in that case "got away with it." On direct appeal, the Louisiana Supreme Court upheld Mr. Snyder's conviction and death sentence against a claim that the prosecutor had exercised his peremptory challenges in a discriminatory manner in violation of Batson v. Kentucky, 476 U.S. 79 (1986). See State v. Snyder, 750 So.2d 882 (La. 1999). In 2005, the Supreme Court granted certiorari, vacated the judgment of the Louisiana Supreme Court, and remanded the case to that court in light of the Supreme Court's decision in Miller-El v. Dretke, 545 U.S. 231 (2005). See Snyder v. Louisiana, 545 U.S. 1187 (2005). The Court's landmark opinion in Miller-El, and the Clinic's role in that case, is discussed below. On remand, by a 4-3 majority, the Louisiana Supreme Court affirmed its opinion, denying relief to Mr. Snyder, who again petitioned the Supreme Court for certiorari. The Court granted review to decide whether Mr. Snyder's right to Equal Protection was violated by the prosecutor's use of his peremptory challenges. See State v. Snyder, 942 So.2d 484 (La. 2006); Snyder v. Louisiana, __U.S.__, 127 S.Ct. 3004 (2007).

The Clinic's amicus brief on behalf of Mr. Snyder argued that the Louisiana Supreme Court majority failed, at the final step of the Batson inquiry, to take into consideration all relevant evidence in determining whether the State had struck black jurors based upon their race. It emphasized the "unusual, unethical, and unconstitutional nature" of the prosecutor's conduct in regard to the O.J. Simpson comparisons 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." The case was argued before the Supreme Court on December 4, 2007.

Briefs, opinions, oral argument and are available in PDF format:

September 2007 Brief of Petitioner
November 2007 Brief of Respondent
November 2007 Reply Brief of Petitioner

September 2007 Brief of Amicus Curiae, The Constitution Project
September 2007 Brief of Amici Curiae, Jefferson Parish Ministers

Oral Argument Transcript (Dec. 4, 2007)

Opinion (March 19, 2008)

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.

In his first petition for 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. 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 persons and instills trust in the public that the system serves.

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. The Supreme Court's opinion corrected long-standing errors in the 5th Circuit's habeas corpus practice. 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 found 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 Miller-El v. Dretke, 03-5659, and on May 28 the clinic and Sidley Austin filed an amicus brief in support of the petition. Again, they represented a distinguished group of former prosecutors and judges. Their brief argues 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.

In September 2004, the clinic and Sidley Austin filed an amicus 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 in itself 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.

Briefs, opinions, oral argument and are available in PDF format:

• 2002 Opinion, In re: Thomas Miller-El v. Cockrell, United States Supreme Court
• February 2002 Brief of Amici
• May 2002 Brief of Amici
• October 16, 2002 Oral Argument Transcript
• Opinion, In re: Thomas Miller-El v. Dretke, 5th Circuit Court of Appeals
• Petition for Writ of Certiorari, Thomas Miller-El v. Dretke
• May 2004 Brief of Amici
• Petitioner's Brief on the Merits, Thomas Miller-El v. Dretke
• September 2004 Brief of Amici
• Petitioner's Reply Brief
• December 6, 2004 Oral Argument Transcript
• June 13, 2005 Opinion, In re: Thomas Miller-El v. Dretke, United States Supreme Court