The great majority of the clinic’s capital litigation involves direct representation of clients facing capital punishment. However, the clinic has supported death-sentenced litigants by filing amicus curiae (friend of the court) briefs in their cases, providing critical perspectives and expertise not otherwise available to the reviewing courts. Several prominent cases in which the clinic has represented amicus curiae are highlighted below.
People v. McDaniel
At the request of Governor Gavin Newson, the clinic and Dean Erwin Chemerinsky filed on the Governor’s behalf an amicus curiae brief in the California Supreme Court in support of death-sentenced prisoner Don’te McDaniel. The Court sought briefing on an issue that affected all pending capital cases: Does the state’s jury-trial right require the application of both the beyond-a-reasonable doubt and unanimity standards to the finding of aggravating factors and the penalty determination? The pathbreaking amicus curiae brief argued that, given the manner in which racism has infected capital punishment in California historically and to this day, the answer is “yes.” Although the court decided against Mr. McDaniel, the brief marked the first time a sitting California governor participated as amicus curiae in a case.
Baze v. Rees
The clinic filed an important amicus curiae brief in Baze v. Rees, a Kentucky case in which the United States Supreme Court considered for the first time the constitutionality of the procedures used to administer lethal-injection executions. The clinic filed its brief on behalf of death-row inmates in California, Missouri, Maryland, and Florida. The clinic’s brief recounted for the Supreme Court the widespread lack of professionalism and competency in the administration of lethal injection in this country, using compelling examples from states with more detailed records of lethal-injection problems than the Kentucky record at issue. These same issues compromising the administration of lethal injection continue to plague states to this day.
Snyder v. Louisiana
Co-counseling with WilmerHale on behalf of The Constitution Project, the clinic filed an amicus curiae brief in the United States Supreme Court addressing a prosecutor’s racial discrimination in the exercise of peremptory strikes in violation of Batson v. Kentucky, 476 U.S. 79 (1986). Because of that discrimination, Allen Snyder, a Black man, was convicted and sentenced to death by an all-white Louisiana jury. The trial took place less than a year after O.J. Simpson was acquitted of murder in California, and the prosecutor alluded to that case during Mr. Snyder’s trial. The clinic’s amicus curiae brief in support of Mr. Snyder argued that the proper inquiry under Batson required the Court to take into consideration all relevant evidence in determining whether the State had struck Black jurors based upon their race. The brief emphasized the “unusual, unethical, and unconstitutional nature” of the prosecutor’s conduct in making O.J. Simpson comparisons as “powerful evidence of the prosecutor’s discriminatory intent to use his peremptory challenges to purge the capital jury of all African Americans.” The Supreme Court, in a 7-2 opinion by Justice Alito, agreed that the prosecutor had acted unconstitutionally in striking one of the Black potential jurors. The Court reversed Mr. Snyder’s conviction and death sentence.
Miller-El v. Cockrell & Miller-El v. Dretke
In a seminal case applying Batson v. Kentucky, 476 U.S. 79 (1986), the United States Supreme Court granted relief to Thomas Miller-El, who had been convicted of capital murder and sentenced to death in Texas. At issue was the prosecution’s use of peremptory challenges to strike 91 percent of African Americans from the jury.
The clinic and Sidley law firm filed four amicus curiae briefs on behalf of former judges and prosecutors in support of Mr. Miller-El. The clinic filed its first brief in support of a petition for writ of certiorari, which was pending when Mr. Miller-El was facing an execution date. When the Supreme Court agreed to hear the case, the clinic filed an amicus curiae brief urging reversal of the conviction and death sentence. In Miller-El v. Cockrell, the Court held that the Fifth Circuit Court of Appeals had applied ‘too demanding a standard” when it declined to consider Mr. Miller-El’s Batson claim and remanded the case. Upon remand, the Fifth Circuit again denied relief under Batson, and again the clinic filed an amicus curiae brief in support of Mr. Miller-El’s petition for writ of certiorari. After the Court granted review, the clinic filed another brief urging reversal because the Fifth Circuit’s treatment of the Batson claim gave courts a roadmap for insulating discriminatory peremptory challenges from judicial scrutiny and eroded public confidence in the judicial system. This time, the Supreme Court addressed the merits of Mr. Miller-El’s Batson claim and granted relief, holding that the State’s explanations for its strikes were “pretextual” and concluding that it “blinks reality” for the State to deny that it had challenged specific jurors because they were Black.