Death Penalty Clinic News

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.

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 WilmerHale 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.

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.

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 (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 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 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, 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.”

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.

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.

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.