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Real Cases. Real Experience.

Supreme Persuasion

UT Law clinics enjoy remarkable success at the United States Supreme Court

Photo of a large group of students standing before the U.S. Supreme Court

UT Law students at the U.S. Supreme Court.

When third-year student Scott Keller joined the inaugural class of the Law School’s 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.

But Keller and his five classmates, supervised by Professor Michael Sturley and Washington, D.C. lawyer David C. Frederick, ’89, beat those odds in January when the U.S. Supreme Court granted certiorari in the case Altadis USA v. Sea Star Line, the first case taken on by the young Clinic.

The opportunity to litigate at the highest level is uncommon. It’s even more unusual when the advocates are still in law school.

The opportunity to litigate at the highest level is uncommon. 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 seventy-eight of the 8,517 cases filed, less than one percent. Of the cases selected for review this term, students and faculty in the Law School’s 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.

Capital Punishment Clinic wins three cases

In addition to agreeing to hear the Supreme Court Clinic’s case, the high court announced last fall it was granting certiorari in three death penalty cases filed by the Capital Punishment Clinic. Those cases were argued before the Court in January by Professors Rob Owen and Jordan Steiker, assisted by students and faculty co-counsel.

On April 25, the Court ruled in favor of three death-sentenced inmates represented by the Clinic. The three inmates, Laroyce Smith, Brent Brewer, and Jalil Abdul-Kabir, had challenged their sentences on the ground that the instructions given at their trials failed to permit meaningful consideration of mitigating evidence.

With these three decisions, the Capital Punishment Clinic has now won five consecutive victories in the Supreme Court over the past three years.

“These three decisions confirm that the Supreme Court’s death penalty jurisprudence is not optional or advisory to the Texas courts and the Fifth Circuit Court of Appeals,” Steiker said. “The victories are bittersweet, though, in light of the numerous inmates with similar claims who have already been executed. We are gratified that the Supreme Court has restated in unequivocal terms its commitment to full consideration of mitigating evidence in capital cases.”

The Capital Punishment Clinic was established at the School of Law in 1987. Since then 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 ten 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 codirects the University of Texas’s Capital Punishment Center, which houses the Capital Punishment Clinic. “We have a lot more cases and there are a lot more people who are in imminent danger of being executed, so 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 compelling. “I’ve researched whether a certain drug interacts with another drug when talking to a physician about mitigation for one client,” Harrington said, noting that he has penned several memos about issues critical to particular 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, and to experience the Court and the personalities of the justices in a way that isn’t possible from opinions or through the media. “You are really on the edge of your seat,” he said. “It was an amazing experience to watch our professors spar with Justice Scalia and Justice Breyer.”

“It was an amazing experience to watch our professors spar with Justice Scalia and Justice Breyer.”

“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.

Capital Punishment Center directors 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 Smith v. Texas in January before the Court with co-counsels Maurie Levin, a professor with the Clinic, and Harvard University Law Professor Carol Steiker, whose students also contributed to the effort. 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.

Smith, Brewer, and Abdul-Kabir all addressed the similar question of whether the sentencing instructions given to the defendant’s jury during the punishment phase of the trial allowed jurors to consider mitigating evidence 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 in prison rather than death by injection.

Another law student who attended the oral arguments in January was Meghan Shapiro, who will join the Clinic next year. As a first-year student she volunteered to work on Smith.

“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 clinical 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 predawn hours on the day of the oral arguments and stood in bitterly 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 should not assume that your life’s path will not lead you to that podium. It can surprise you.”

“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.” He noted that many former students are now highly successful and highly respected advocates in capital litigation.

“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.”

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 assists with a fourth case before the Court

Under the supervision of professors Maurie Levin and Jim Marcus, students in the Capital Punishment Clinic worked on another Supreme Court case this term as well. The case, Panetti v. Quarterman, was argued by Gregory Wiercioch, an attorney with the Texas Defender Service, a private, non-profit law firm that represents death row inmates. Levin, an experienced death penalty lawyer, works part-time as a staff attorney at TDS, where Marcus was executive director before joining the Law School’s faculty.

The issue in this case is whether Scott Panetti is mentally competent to be executed. Marcus said that 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 have worked on the opening brief, including Christina Thoda. During spring break in March, she traveled with Marcus and other clinic students to death row at Texas Department of Criminal Justice’s Polunsky Unit in Livingston to meet Panetti face to face for the first time. “It’s a very emotional experience talking to any one on death row, especially someone like Panetti, who is visibly mentally ill,” Thoda said.

Thoda endeavors to get inmates 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,” she 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 country’s thirty-eight death penalty states. She said her work on Panetti 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 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. 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 Altadis.

Word of the Clinic’s early success quickly heightened the allure of Supreme Court advocacy among UT Law students. Clinic student Keller reported, “I’ve already had ten 1Ls [first-year law students] come up and ask me, ‘How do you get into the Supreme Court Clinic?’”

The 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 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 conducting 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, Florida. Although the shipment made the trip by sea without incident, the cigars were stolen from a truck during inland transport.

The Clinic team took the 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 Clinic supervisor 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 1982–1983 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. Disagreement in the lower courts over the issue made it a good candidate for Supreme Court review.

By deciding to represent Altadis, the Clinic made it possible for an important case to proceed that would otherwise 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.

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. Students also produced the entire first draft of the certiorari petition,” Keller said. The draft was then revised under the guidance of Sturley; Brendan Crimmins, ’03, an associate at Kellogg, Huber, Hansen, Todd, Evans & Figel in Washington, D.C.; and David Frederick, ’89, a partner in the D.C. office of Kellogg, Huber. Frederick clerked for Justice Byron R. White and now regularly represents private clients in the Supreme Court. Both he and Crimmins 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 one hundred years ago,” said Keller. 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 Altadis.

“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.

After the Court agreed to hear Altadis, but before the case could be argued, a settlement was reached between the parties. The Court did not issue an opinion, leaving the issue in the case unresolved. Sturley explained that the defendant offered Altadis USA 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 client’s interests,” he said. “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.”

“Our real pedagogical goal is to train our students to be better lawyers, which means, among other things, best serving their client’s interests.”

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 gave me a greater appreciation of the skill required of a Supreme Court advocate,” said third-year law student Benjamin Wallfisch. “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.”

The same students who worked on Altadis are currently in the preliminary research stages of a new case involving the Fourth Amendment. Another four students who joined the Clinic in the spring semester worked with Sturley, Frederick, and Professor Lynn Blais (who clerked for the late Justice Harry A. Blackmun) to file 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. On May 29, 2007, the Court invited the Solicitor General to file a brief expressing the views of the federal government, which is often a preliminary step before the petition is granted.

The national picture

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. Stanford Law School established the first Supreme Court Clinic in 2003. In the past year, Supreme Court clinics have also been launched at Yale, Virginia, and Northwestern. Harvard announced it will start one next fall.

Students commented they were surprised at the amount of teamwork and interaction clinical work requires. “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.”

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. “So many clients are represented at the Supreme Court by lawyers who have no experience in Supreme Court practice,” Sturley said. “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. 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 tells his students. But he also teaches students how to improve those odds.

This leaves clinic student Keller optimistic as he searches for cases like Altadis that could once again beat the odds. Since October, Keller has been sorting through cases trying to find cert-worthy issues. In the process, he discovered the Fourth Amendment case on which he and his classmates are currently working. Now he’s hoping this will become another success story.

This article was published in the Spring 2007 issue of UT Law magazine, and is based on a story that originally appeared on the University of Texas website, which can be found at http://www.utexas.edu/features/2007/supreme