Editor’s note: The U.S. Supreme Court ruled April 25 on three cases described in this story. Read more about the decisions.
When Scott Keller of The University of Texas School of Law joined the inaugural class of the Supreme Court Clinic last fall, one of the first things he learned was how daunting the odds were against taking a case “all the way to the Supreme Court.”
|Professor Rob Owen (center) talks to law students in the Capital Punishment Clinic on the steps of the U.S. Supreme Court immediately after arguing two death penalty cases before the Justices in January.
But Keller and his five classmates, supervised by law professor Michael Sturley and Washington, D.C., lawyer David C. Frederick, a 1989 Law School graduate, beat those odds—more than 100 to one—in January when the U.S. Supreme Court agreed to hear the Clinic’s very first case.
“Taking a case to the U.S. Supreme Court as a law student is kind of like making the BCS championship (football) game or the Final Four (in basketball),” said Keller, 25, who learned in the Clinic how to look for cases that stand a better chance of catching the Court’s interest. “It’s a lot of hard work to get there and it’s an honor to have such an opportunity.”
That opportunity to litigate at the highest level is uncommon. Most attorneys can work their entire careers without ever having that experience. It’s even more unusual when the advocates are still in law school.
During its most recent term the Supreme Court agreed to hear only 78 of the 8,517 cases filed, or fewer than one percent. Of the cases selected for review this term, students and faculty in the Supreme Court Clinic and the Capital Punishment Clinic have been involved in five—an unprecedented number of active Supreme Court cases at any law school in a single term.
“It is a remarkable success for two of our clinics to have cases accepted by the Supreme Court for argument in the same semester,” said UT Law Professor Eden Harrington, who oversees the Law School’s 14 clinics and seven internship programs.
Capital Punishment Clinic Argues Three Cases, Assists in Fourth in Single Term
In addition to agreeing to hear the Supreme Court Clinic’s case Altadis USA v. Sea Star Line, the high court announced last fall it was granting “certiorari” (or review of a lower court’s decision on the merits) in three death penalty cases filed by the Capital Punishment Clinic. Assisted by students and faculty co-counsel, law professors Rob Owen and Jordan Steiker argued those cases before the Court in January and are awaiting decisions. The Clinic assisted in a fourth Texas death penalty case argued before the Court on April 18. The Court is expected to decide all four cases by the end of June.
“This is an extraordinary year in Texas death penalty litigation because the Supreme Court has accepted four cases for review, and the clinic has been involved in all of them,” said Jim Marcus, an expert in death penalty litigation and professor with the Capital Punishment Clinic. “For students, it’s a highly valuable experience to be part of a legal team litigating a case in the Supreme Court that will eventually form part of the Court’s canon of Eighth Amendment jurisprudence.”
Since 1987 when the Capital Punishment Clinic was established at the School of Law, about 300 law students have assisted in representing indigent defendants charged with or convicted of capital crimes. Students, who must also attend a weekly class in the practical skills required to defend a capital case, work at least 10 hours a week under the supervision of attorneys handling death penalty cases at trial, on appeal, or in post-conviction review.
Students perform tasks that are integral to effective defense representation, including visiting clients on death row or in local jails, interviewing witnesses, conducting other field investigations, drafting legal pleadings and helping attorneys prepare for trials, evidentiary hearings and appellate arguments.
“One of the things that distinguishes our clinic from other capital punishment law school clinics around the country is simply the accelerated pace of the death penalty in Texas,” said Owen, who along with Steiker co-directs the university’s Capital Punishment Center, which houses the Capital Punishment Clinic. “We have a lot more cases, there are a lot more people who are in imminent danger of being executed and students are working on cases with a certain urgency to them.”
Owen said it’s the steady stream of Texas capital punishment cases that allows students to gain valuable experience at various stages of the litigation process, including appellate work at the Supreme Court level.
“One of the unusual things about death penalty litigation, and one of the reasons that I was interested in it as a student and drawn to it as a lawyer, is that it is so Supreme Court focused,” Owen said. “The Supreme Court still devotes a surprisingly large proportion of its docket to capital cases, so you need to be aware of what’s going on at the Supreme Court and be a closer student of that body of law than you do in other kinds of practice.”
Eric Harrington is a third-year law student who has worked in the clinic for three semesters and finds the range and depth of the clinic’s legal training to be compelling.
“I’ve researched whether a certain drug interacts with another drug when talking to a physician about mitigation for one client,” Harrington said. “I’ve done classical legal writing,” he said, noting that he’d penned several memos about issues critical to clients’ cases. “I’ve also had truly transformative client interactions on death row.”
But for Harrington the culmination of his clinical experience was traveling to Washington, D.C., with his classmates earlier this year to observe Steiker and Owen in oral arguments before the Supreme Court.
“You are really on the edge of your seat,” he said. “It was an amazing experience to watch our professors spar with Justice (Antonin) Scalia and Justice (Stephen) Breyer.”
Second-year law student Daniel Gagarin agreed, saying the experience was more than a novelty.
“The experience will stick with me for the rest of my life. I was really moved by it,” said Gagarin, who found watching the professors practice and strategize at moot courts the week before to be just as interesting as the actual argument.
Harrington said students also experienced the “life of the Supreme Court” and the personalities of the justices in a way that isn’t possible from opinions or through the media.
|Excerpted Exchange Between Law Professor Rob Owen and Supreme Court Justices on Abdul-Kabir/Brewer v. Quarterman
CHIEF JUSTICE ROBERTS: How would you compare that evidence with the evidence in Penry itself?
MR. OWEN: I think, Your Honor—
CHIEF JUSTICE ROBERTS: These are closer cases than Penry, I think. You'd have to concede that, wouldn't you?
MR. OWEN: I think they are different cases, Your Honor, I'm not willing to concede that they are closer cases. I think that in, in the jurors' minds, the only conclusion that could be drawn from the evidence in these cases is that the Defendants are likely to be dangerous in the future. That is exactly the same conclusion that would have been compelled by the evidence in Penry.
JUSTICE GINSBURG: [S]uppose we think the evidence is weaker, it's still evidence of childhood abuse and mental disorder of some kind, and those are relevant mitigating factors.
MR. OWEN: Absolutely, Your Honor.
JUSTICE GINSBURG: So if your case is less strong than maybe the jury will decide it the other way. But it doesn't mean that those factors are not mitigating factors.
MR. OWEN: I couldn't agree more, Your Honor. I think it's very clearly settled by Tennard and other cases going back to 1976 that facts like a deprived or abused background or mental impairment are certainly mitigating.
More case materials:
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“I did not realize that Justice Breyer was such an animated person on the bench, swinging back and forth with his hand on his head leaning forward. The volleying of Supreme Court litigation is just absolutely fascinating,” said Harrington, adding that Steiker had barely started his argument when Justice Scalia interrupted with a question.
Both Steiker and Owen are nationally recognized experts on death penalty constitutional law. Steiker—who joined the Law faculty in 1990 after serving as a law clerk to Supreme Court Justice Thurgood Marshall—argued the Smith v. Texas case in January before the Court with co-counsels Maurie Levin, a professor with the Clinic, and Harvard University Law Professor Carol Steiker. Owen—who has defended people facing the death penalty since 1989 and who also leads a Plan II Honors freshman seminar on the death penalty—argued the consolidated cases of Brewer v. Quarterman and Abdul-Kabir v. Quarterman with Steiker serving as co-counsel in the cases.
Smith, Brewer and Abdul-Kabir all addressed the similar question of whether the sentencing instructions given to the defendant’s jury allowed jurors to consider “mitigating” evidence during the punishment phase of the trial, such as a defendant’s intellectual impairments, learning disabilities, placement in special education and traumatic family background. Jurors allowed to consider such evidence, argued the Clinic’s attorneys, might choose to sentence the defendant to life imprisonment rather than death by injection.
Another law student who attended the oral arguments in January was Meghan Shapiro, who plans to join the Clinic next year but as a first-year student volunteered to work on the Smith case.
“Meghan jumped in and found terrific support for an important issue in the case,” Steiker said. “And that issue became a very salient one at argument, where we were asked about how the Texas courts had traditionally treated a failure to make a contemporaneous objection.”
“Contributing to a case that goes to the Supreme Court is such an exciting experience that when I was doing that, I couldn’t wait to finish the work for my regular classes,” said Shapiro, a Virginia native who chose to attend the Law School for the opportunities to work on death penalty cases.
“It’s really what motivated me to study hard, so I could do something that was current and affecting a real person and possibly affecting history,” she said.
Shapiro arrived outside the Supreme Court building in the pre-dawn hours on the day of the oral arguments and stood in bitter cold temperatures for hours with more than a dozen students to ensure seats inside the Court.
“We were thrilled that the students were able to attend the arguments in the Supreme Court after working on the cases and understanding the issues from the inside out,” Steiker said. “They also got to see the evolution of what we had said in our moots and how we were encouraged to reframe or change our argument. It’s great for our students to see us as students, too.”
Owen often tells his students that any one of them could end up arguing a case before the Supreme Court.
“You really should not assume lightly that your life’s path will not lead you to that podium because it can surprise you,” he reminded students recently.
Shapiro said she can imagine becoming a Supreme Court litigator.
“It becomes very real when you’re actually sitting there watching people you know argue these cases,” she said. “You’re sitting there the whole time thinking, I guess I could have answered that question. Then suddenly you start to think, maybe I might be doing that one day.”
|Capital Punishment Clinic Law Professors (from left to right) Jordan Steiker, Rob Owen, Maurie Levin and Jim Marcus at the Supreme Court after oral arguments in January.
“One of the best things that our clinic can do is allow our students to envision themselves involved in the highest levels of practice,” Steiker said. “And our students come out of the clinic much better equipped to wrestle with complicated legal issues and to work with others to refine their positions and advocacy.”
Steiker added that many former students are now highly successful and highly respected advocates in capital litigation.
The Court has not yet ruled on the three cases the clinic argued in January, but opinions could be issued any time before the end of the Court’s 2006-2007 term in June. In recent years, the Capital Punishment Clinic, led by Owen and Steiker, has litigated two other death penalty cases before the Supreme Court and won both times.
Students in the Capital Punishment Clinic are working on another Supreme Court case, Panetti v. Quarterman, under the supervision of clinical professors Levin and Marcus. The case was argued by an attorney with the Texas Defender Service (TDS), a private, non-profit law firm that represents death row inmates. Levin works part-time as a staff attorney at TDS, where Marcus was executive director before coming to the university’s School of Law.
According to Steiker, the arrival of Levin and Marcus to the Capital Punishment Clinic has strengthened the Clinic’s mission.
“They have both brought invaluable experience as high-powered capital litigators to the Capital Punishment Clinic,” he said, “and their efforts in these cases have been extraordinary.”
The issue in the case is whether Scott Panetti, sentenced to death for murdering his wife’s parents, is mentally competent to be executed. Marcus said Panetti, with a long history of severe mental health problems, has been diagnosed as a schizophrenic and doesn’t have a rational grasp of why Texas intends to execute him.
Several of the students, including advanced clinic student Christina Thoda, have worked on the opening brief, which was filed at the end of February. During spring break in March, the 27-year-old student traveled with Marcus and other clinic students to death row at Texas Department of Criminal Justice’s Polunsky Unit in Livingston to meet their client, Panetti, face to face for the first time.
“It’s a very emotional experience talking to anyone on death row, especially someone like Panetti, who is visibly mentally ill,” Thoda said. Her goal, she said, is to help inmates get a fair trial.
“Ninety-nine percent of the time, these people have not gotten a fair shake from the justice system because their previous counsel or the process has been inept,” Thoda said. “They’ve never had anyone truly understand or fight for the issues in their cases.”
Thoda helped produce a chart for the Supreme Court brief surveying the law related to competency for execution in the 38 death penalty states in the country. She said her work on the Panetti case was much more advanced than the work she did for the clinic’s three other Supreme Court litigation cases this year.
“That made the experience of going to the Supreme Court the second time so much more satisfying,” she said. “To see the law culminate at this level, to see the process go all the way to the Supreme Court, this is what as a law student I’ve been studying for. It reminds me that what I’m doing is really important and this is why I wanted to be a lawyer. When I get into the grunt work of finals, I can look back at this experience and remember why I’m doing this.”
When Thoda graduates this May she will join the New York office of Fulbright & Jaworski in the firm’s litigation department, where she expects to have the opportunity to do pro bono death penalty work.
Early Victory for New Supreme Court Clinic
In 1977, the law school’s oldest clinic, the Criminal Defense Clinic, brought Acker v. Texas to the Supreme Court. The Court agreed to decide the case (and ruled in favor of the Clinic’s client)—apparently the first time that a clinic-generated case had been accepted for review.
|Third-year law students Ryan Newman (left front), Sammy Ford (left back) and Scott Keller (right front) discuss their Supreme Court Clinic case with Professor Michael Sturley. Photo: Marsha Miller.
Thirty years later, one of the newest clinics at the law school, the Supreme Court Clinic, also scored a huge victory when the Court announced in January that it had agreed to review the Clinic’s very first case.
Word of the Clinic’s early success quickly heightened the allure of Supreme Court advocacy among Law students and pushed the clinic off to a strong start.
“I’ve already had ten 1-Ls (first-year law students) come up and ask me, ‘How do you get into the Supreme Court Clinic?’” said Keller, who along with other students works with faculty and seasoned Supreme Court litigators on cases pending before the Supreme Court.
The Supreme Court Clinic meets once or twice a week, often on the fifth floor of the law library in a corner room where pictures of Supreme Court justices throughout history cover the walls. In the Clinic, students are assigned to represent real clients seeking review of lower court decisions. The cases may be in any substantive area of law ranging from transport law to the Fourth Amendment, although they are most likely to involve federal statutory issues.
Clinic faculty members retain the ultimate responsibility for a case, but students take the lead in doing the legal research, developing the arguments that will be used and preparing the initial drafts of the briefs or other documents to be filed with the Court. The Clinic also includes traditional classroom sessions to introduce students to Supreme Court practice and procedures.
In its first case, the Clinic agreed last fall to represent a Florida company, Altadis USA, which contracted with Sea Star Line to carry a sealed container of cigars and cigar bands from San Juan, Puerto Rico, to Tampa, Fla. Although the shipment made the trip by sea without incident, the cigars were stolen from a truck during inland transport.
|In the West Conference Room, Chief Deputy Clerk Chris Vasil (center) gives an inside perspective on the operation of the Court to visiting Supreme Court Clinic students in March.
The Clinic team took the Altadis case because the dispute raised important questions of liability involving goods shipped by sea and land—which total more than a trillion dollars in U.S. trade each year.
“The legal issue is difficult and significant: Which federal legal regime provides the rules to determine a carrier’s liability for damaged cargo that is carried by both ship and truck?” said Sturley, whose specialties include maritime law, commercial law and Supreme Court practice.
Sturley, who clerked at the Supreme Court for Justice Lewis F. Powell Jr. in the 1982-83 term, explained that the courts of appeals have been split on the answer to this question, with some courts applying the federal transportation law for land to determine a carrier’s liability and others applying the federal law for ocean carriage. The lower courts’ disagreement over the issue has made it ripe for review by the Supreme Court.
By deciding to represent Altadis, the Clinic enabled an important case to proceed. The case would have been abandoned because the amount of money at stake in the individual case was too small to justify the normal expense of Supreme Court litigation. The client obtained the benefit of first-rate legal representation at no charge and the Clinic obtained a perfect vehicle for the students to learn first-hand about Supreme Court practice, Sturley said.
For students in the Clinic, being a part of the Supreme Court legal team meant working on almost every facet of the case.
“We were finding case law on point, pouring over statutory history, and crafting policy arguments that would help our client,” Keller said. “Students also produced the entire first draft of the certiorari petition,” he said, noting it was then revised under the guidance of Sturley, Frederick and Brendan Crimmins, a 2003 Law graduate and an associate at Kellogg, Huber, Hansen, Todd, Evans & Figel in Washington, D.C. Both Crimmins and Frederick (who clerked for Supreme Court Justice Bryon R. White and is a partner at Kellogg, Huber where he regularly represents private clients in the Supreme Court) are Sturley’s former students.
“At times I felt like Indiana Jones searching for a lost text when I was digging through statutory history from literally 100 years ago,” said Keller, noting that in its brief to the Court the team needed to summarize a statute known as the Carmack Amendment, which the Clinic argued was the federal law that applied in the Altadis case.
“We had to go back through the legislative history and the changes to the Carmack Amendment to succinctly explain how the statute had become so convoluted that six separate statutory provisions really all stemmed from the same 1906 statute,” Keller explained. “This required opening library books that I swear hadn’t been opened in decades as they were dusty and old.”
In the end, the countless hours of research paid off for the students when they learned in January that the Supreme Court had agreed to review their case.
“There’s a purpose for doing all the work and that’s because you’re trying to win your case,” said Sammy Ford, a third-year law student.
Once the Clinic persuaded the Court to hear the Altadis case, a settlement was reached between the parties in mid-February—before the case could be argued before the Supreme Court. Therefore, the Court did not issue an opinion, leaving the issue in the case unresolved. Sturley explained that the defendant in the case offered the Clinic’s client a settlement that was more generous than the result that the client would have achieved if it had won the case before the Court.
“It would have been gratifying to participate with the students in clarifying the law in this important and complicated area,” said Sturley, who has participated in several dozen Supreme Court cases. “But our real pedagogical goal is to train our students to be better lawyers which means, among other things, best serving their clients’ interests. In this case, they learned that the best way to serve a client’s interest is not necessarily to get a favorable opinion from the court.”
Sturley added that at the time the settlement happened, the students had already done the overwhelming bulk of the work on writing a merits brief.
“So in effect, they’ve had the experience of writing a successful cert petition and writing a merits brief.”
Despite the settlement, the students traveled to Washington, D.C., in late March to see an argument at the Supreme Court and meet with two Court officials—the chief deputy clerk and the administrative assistant to the Chief Justice.
“Seeing an oral argument for the first time, I was impressed by how the Justices worked through a problem, probing the strengths and weaknesses of each side’s argument,” third-year law student Benjamin Wallfisch, 29, said.
“An otherwise dry land-use dispute became a colorful and vigorous investigation of some thorny legal questions,” he said, noting the impressive talent of the two experienced advocates he watched argue the case. “It gave me a greater appreciation of the skill required of a Supreme Court advocate. But it was priceless to hear the vivid stories of two Supreme Court veterans, who gave us an inside perspective on the operation of the Court.”
|Supreme Court Clinic Co-Director David Frederick (second from left), a 1989 Law School graduate, talks with law students (from left to right) Tim Gerheim, Scott Keller and Sammy Ford in the Great Hall of the Court during a March visit. Standing between Keller and Ford are law students Aaron Liskin and Benjamin Wallfisch.
The same students who worked on the Altadis case are in the preliminary research stages of a new case involving the Fourth Amendment, which governs search and seizure issues. Another four students who joined the Clinic in the spring semester filed the clinic’s second petition for certiorari in March. That case, United States ex rel. Bly-Magee v. Premo, involves a whistleblower seeking relief under the False Claims Act. The Court is expected to rule on the petition in May.
While it’s still fairly unusual for a law school clinic to take a case to the Supreme Court, the competition to work on this type of litigation has been growing recently. In the past year, Supreme Court clinics have also been introduced at such law schools as Yale, Virginia and Northwestern. Stanford University established the first Supreme Court clinic in 2003 and Harvard University announced it will start one next fall.
Frederick, who will argue his 21st case before the Supreme Court this week, said this type of clinic exposes students to the practice of law at the highest levels of the profession at the highest level of the judicial system.
“The students have also developed a wonderful rapport with one another working on these cases as a team,” he said.
Students said they were surprised at the amount of teamwork and interaction required.
“Most people think of appellate lawyers as meticulous brief writers who are holed up in an office pouring over cases,” Keller said. “That’s not exactly false—it’s just not the whole picture. We spent hours bouncing ideas and arguments off of each other.”
Students, many of whom work as editors on law journals, were often pushed to produce a lot of high-quality work in a very short time.
|Members of the Supreme Court Clinic on the steps of the Court during their March visit. From left to right (front row): Clinic Co-Director David Frederick—a 1989 Law School graduate, Sammy Ford and Ashley McKeand; (second row) Scott Keller, Elizabeth Hardy, Aaron Liskin and Brendan Crimmins—supervising attorney and a 2003 Law School graduate; (third row) Tim Gerheim, Benjamin Wallfisch and Joe Conley. Not pictured are Clinic Co-Director and Professor Michael Sturley and students Ryan Newman and Esther Sung.
“We prepared the cert petition in roughly three weeks,” Ford said. “Because of the intensity of the work, and the confidentiality we had to maintain at the beginning, the clinic forged close bonds between the participants.”
Third-year student Ashley McKeand said the Clinic’s value has been to provide work that has practical meaning and significance.
“It’s helped me get a sense of whether this type of work is something that I would like to do,” she said. “It’s also excellent practice to get practical writing experience.”
Joe Conley, a graduate history student before attending law school, said knowing his work has the potential of being read by a Justice is motivation to be exhaustive in his reading of cases and disciplined in his writing.
“This is the kind of training you wouldn’t get anywhere else,” he said.
Second-year law student Aaron Liskin agreed, “This was an opportunity to get hands-on experience working on an actual case and learning how the process works.”
The experience is also helping students prepare to clerk. After graduation this May, the six students from the Clinic’s inaugural class will work as law clerks to U.S. federal judges with the exception of one student who will clerk for a justice on the South African Constitutional Court.
Part of the preparation for Supreme Court litigation is teaching students to figure out what cases the Court might want to hear, and how to properly frame and brief cases for the Court.
“So many clients are represented at the Supreme Court by lawyers who have no experience in Supreme Court practice,” Sturley said. “Supreme Court advocacy is a very specialized skill. The fact that a lawyer is good at making a jury argument is not necessarily going to mean the lawyer is good at making a Supreme Court argument.”
“They may be good lawyers but they are not aware of what the court is looking for, or which aspects of the client’s case need to be presented to the court,” he said. “So having the Clinic and working on these cases enables the students to learn what the Court is looking for and also enables the clients to have their cases presented in a way that stresses their strongest arguments.”
Sturley added that he passes out statistics on the first day of class showing how hard it is to persuade the Court to review a case, not to intimidate students but to give them a sense of realism.
“The odds are against you,” he will tell his students. But, he also teaches students how to improve those odds.
“We don’t choose random cases. We choose cases that we think have a realistic shot,” Sturley said. “So we have already gone into this with a better-than-average chance of success, and then our job becomes to turn that better-than-average chance into a successful petition.”
This leaves Clinic student Keller optimistic as he searches via computer for cases like Altadis that could once again beat the odds. Since October, Keller has been spending at least one or two hours each week sorting through 25 to 40 cases trying to find cert-worthy issues. In the process, he discovered the Fourth Amendment case on which he and his classmates are working. Now he’s hoping this will be the Clinic’s third success story.
BY Laura Castro
School of Law
PHOTOS at U.S. Supreme Court: Claire Duggan
ON THE BANNER: Capital Punishment Clinic students and faculty
standing in front of the
U.S. Supreme Court after oral arguments in three of their cases in January.
From left to right: Anna Baker, Jasmine Erdener, Eric Harrington, Linford Coates, Meghan Shapiro,
Jamie Dickson, Sian Crichton, Kimberly Gustafson, Professor Jordan Steiker, Stefanie Collins,
Professor Rob Owen,
Mary Beth Hickcox-Howard, Chase Hamilton, Professor Maurie Levin,
Paul Riffe, James Dowd, Daniel Gagarin, Christina Thoda and Professor Jim Marcus.