By Andrew Cohen
In her 15-plus years leading Berkeley Law’s Death Penalty Clinic (DPC), Professor Elisabeth Semel has heard all kinds of suggestions. The clinic should pursue non-capital cases (less costly and time-consuming). Or shift to policy work (a more predictable schedule for faculty). Or focus on more politically popular issues (easier traction for fundraising).
“Certainly, I hope the day will come when there is no need for a capital punishment clinic,” Semel said. “Until it does, I cannot imagine walking away from these men and women for opportunistic reasons.”
The clinic marked its 15th anniversary recently by welcoming back its alumni—many of whom are now public interest lawyers—for a Friday night cocktail reception and Saturday brunch with their families.
The occasion allowed clinic leaders to take a rare break from their dogged work on behalf of indigent capital defendants—and to reflect on the clinic’s growing legacy.
“The high-quality product that Lis and her students consistently produce has earned the clinic enormous credibility and respect in the field,” said Christina Swarns, litigation director of the NAACP Legal Defense & Educational Fund. “Her willingness to expand and leverage the clinic’s resources to support other lawyers on death penalty cases has made the clinic a go-to resource.”
Case in point
The reunion also created a chance to celebrate the clinic’s memorable victory in a Louisiana case last fall. From 2012 to 2014, six DPC students worked under the supervision of then-clinical teaching fellow Bidish Sarma on behalf of Thao Lam, who had been sentenced to death in Louisiana.
The state’s supreme court had remanded the matter back to the trial court for an evidentiary hearing to address questions about subpar interpretation services given to Lam, who is Vietnamese, at trial.
The interpreter had no training, spoke English poorly, and was not proficient in Vietnamese—yet was charged with ensuring that Lam understood the proceedings. Lam spent significant portions of the trial without understanding what was happening, and his own testimony was mistranslated.
After an evidentiary hearing, the trial judge ordered that Lam receive a new trial, thanks in significant part to the clinic’s work. DPC students identified claims for relief and worked with top experts on courtroom interpretation procedures and Vietnamese culture. They also detailed how constitutional violations at Lam’s trial undermined its validity. No longer on death row, Lau now awaits a new trial or possibly an alternative resolution of his case.
“I had a wonderful experience working with Berkeley Law students on this and other capital cases. They demonstrated a combination of passion and intellect that I haven’t seen widely in the profession,” Sarma said. And, with a community of advocates that now spans 15 classes, a willingness to give back.
Sarma marveled at “how much the older graduates make themselves available to help new and prospective graduates who are seeking jobs in public defense, or want to get involved in pro bono criminal defense work.”
Too good to pass up
After Berkeley Law secured funding from donors Nick McKeown and Peter Davies to launch the clinic, its search for a founding director led to Semel. She had directed the American Bar Association Death Penalty Representation Project in Washington, D.C., and taught Georgetown University Law Center’s capital punishment seminar.
“The opportunity was irresistible,” Semel said. “I could marry my commitment to representing people facing capital punishment with teaching some of the nation’s brightest and most engaged law students—and do it all at UC Berkeley, which my father always insisted was the world’s preeminent university.”
Semel and Associate Director Ty Alper immerse students in all aspects of capital defense; help them become skilled, ethical and vigorous advocates who embrace public service; and illuminate the ways in which the law can advance economic, racial and social justice.
“We give our students a great deal of responsibility in cases where the stakes literally could not be higher,” said Alper. “But the luxury of the clinical experience for our students is that we provide them the guidance, support and opportunity for reflection that enables them to thrive in that role.”
The clinic’s teams defend clients in individual cases, but also pursue cases that can potentially help effectuate systemic change.
“The clinic is an invaluable component of Berkeley Law and is nationally recognized in the capital defense community,” Sarma said. “Under Lis’s and Ty’s leadership, many dozens of students have learned what it takes to represent indigent individuals facing the ultimate punishment.”
A go-to hub
The clinic has continually evolved. In 2007, it established the Lethal Injection Project, led by attorneys Megan McCracken and Jen Moreno ’06—the nation’s leading experts on challenges to this form of execution. Their work has saved lives; exposed states’ willingness to use risky, untested or illegal drugs in execution; and expanded the death penalty debate.
In 2008, DPC added its first teaching fellow, Kate Weisburd, who went on to found and direct the Youth Defender Clinic at the East Bay Community Law Center. That surging program has broadened the clinic’s work, helped increase student enrollment, expand its geographical reach and partner with outside counsel.
Those partnerships include working with lawyers such as Stephen Bright, who recently retired as president and senior counsel of the Southern Center for Human Rights. Alper worked at the center before coming to Berkeley in 2004.
“Ty is brilliant, diligent and creative,” Bright said. “Lis is one of the leading authorities on racial discrimination by prosecutors in jury selection. The Southern Center has had excellent partnerships with the Death Penalty Clinic, and the work of the students has been outstanding in dealing with both the facts and the law.”
Inspiration from many angles
Bright inadvertently inspired Salena Tiet ’17 to join the clinic after her Criminal Law class watched “Fighting for Life in the Death Belt,” a documentary featuring his work.
“He refused to give up, constantly exploring various avenues to either overturn his clients’ convictions or, at the very least, delay their executions,” Tiet recalled. “The film underscored the importance of attorneys willing to go above and beyond what is merely asked of them. It set the bar for the type of advocate I hope to become.”
Tiet’s projects have largely involved legal research, post-conviction mitigation investigation and drafting legal claims for a state habeas petition. She was recently selected as the 2017 recipient of Berkeley Law’s Brian M. Sax Prize for Excellence in Clinical Advocacy.
“The learning curve can be steep and overwhelming at times,” she said. “But nothing can compare with the satisfaction I feel knowing that every assignment I work on is an active step toward saving my client’s life.”
For DPC teaching fellow Kathryn Miller ’07, students such as Tiet fuel the clinic’s mission—and bring back some formative memories. Miller said the most rewarding part of her work “is the opportunity to see my students grow and mature as advocates as they have some of the same life-changing experiences that I once had myself as a graduate of the clinic.”
In addition to the training they receive from Professors Semel and Alper, students often spend considerable time in southern states engaged in fact investigation.
“I’m deeply gratified by our collective advocacy on behalf of our clients. I’m overjoyed at the personal and professional growth of our alums, and I’m moved by the contributions they are making in their careers,” Semel said. “And I never take for granted my remarkable good fortune to have found a home at Berkeley Law.”