School of Law students work on three cases before the U.S. Supreme Court

March 11, 2004

AUSTIN, Texas—Law students at The University of Texas at Austin are playing an important role in the litigation of three cases before the U.S. Supreme Court in 2004: Tennard v. Dretke, Norfolk Southern Railway Co. v. James N. Kirby Pty Ltd., and Stewart v. Dutra Construction Co.

In the Tennard case, students from the Law School’s Capital Punishment Clinic and Class have joined professors Jordan Steiker and Rob Owen to take a leading role in a Texas death penalty case scheduled for argument at the Supreme Court on March 22.

Steiker and Rob Owen are co-counsel in Tennard v. Dretke, No. 02-10038, with Owen giving the oral argument in a case that could have important ramifications for significant numbers of Texas death row inmates whose juries were not properly instructed regarding mitigating evidence. Assisting them are six law students who conducted legal research and drafted arguments for Tennard’s opening brief filed last December in the Supreme Court. They are Kimberly Carter, Leslie Conant, Heather Fraley, Haverly Rauen, Amanda Tyler and Mitria Wilson.

In the Tennard case, Steiker and Owen will join lead counsel Richard Burr, a nationally respected capital defense specialist, to challenge the fairness of defendant Robert Tennard’s 1986 trial. Their brief argues that the punishment phase jury instructions prevented the jury from giving meaningful consideration to Tennard’s extremely low IQ of 67. Had the jurors been properly instructed, Owen and Steiker contend, they might well have concluded that Tennard did not deserve to die.

Tennard calls on the court to enforce the vital constitutional principle that a sentencing jury’s verdict must represent the jury’s reasoned moral response to all the circumstances of the case, including any mitigating evidence,” said Owen, an adjunct professor and director of the Capital Punishment Clinic. The clinic has been involved in several other Supreme Court cases since Owen and Steiker arrived at the university in 1989 and 1990, respectively, although this is the most substantial involvement the clinic has had. A number of clinic students also participated in a March 5 practice argument at the Law School, asking Owen questions about the case before his oral argument in Washington, D.C., which a number of students plan to attend.

“Only 85 to 95 cases are accepted by the Supreme Court each term for argument, so it’s a significant achievement to have our clinic litigating one of them,” said Steiker, who teaches the Capital Punishment Class at the School of Law. “This is very high-level litigation requiring extraordinary research and care. Not only are the stakes higher for the particular client but the resulting decisions are going to have much broader ramifications than decisions in lower courts,” he added.

Law students who worked with Steiker and Owen on this case agree it’s been one of the most exciting and engaging experiences they’ve had in law school. “Professors Owen and Steiker have a lot of passion for this subject, which made our experiences as students that much richer,” said Haverly Rauen, a third year law student. “The chance to go to D.C. to watch Owen argue before the U.S. Supreme Court is a once in a life-time opportunity. I’m very fortunate to be involved in this endeavor.”

“It is an incredible opportunity at this stage of my career to be able to work on a case and see it argued before the U.S. Supreme Court,” said Kimberly Carter, a third year law student. “This is an experience I never thought I would have.”

“Most law students would tell you that sometimes it’s hard to motivate yourself to study,” said Heather Fraley, a second year law student. “But nothing was more motivating than knowing what you’re doing is going to have an impact on someone’s life. Capital defense attorneys save lives, and nothing makes you realize that more than working with those attorneys to help them save a man’s life.”

Amanda Tyler, a third year law student, said she considered it a privilege to help with the briefing on the case. “It reminded me why I decided to come to law school in the first place,” she said. “I hope to continue working on death penalty cases pro bono once I am a member of the bar. I have such respect for attorneys who devote their entire careers to death penalty work.”

Students work on two other cases with professors Sturley, Robertson

Third-year students Marc D. Ellenbogen, Adam S. Harbin, Alex L. Kaplan and Garrick B. Pursley are assisting Law Professor Michael Sturley in preparing the brief for the respondents in Norfolk Southern Railway Co. v. James N. Kirby Pty Ltd., No. 02-1028, which will be heard in October 2004. In Kirby, Sturley is counsel of record for the respondents, and has arranged for alumnus David C. Frederick, ’89, to do the oral argument.

The case involves a train derailment in which about $1.5 million in cargo was damaged. Sturley’s clients have sued the railroad, which denies liability but claims the benefit of the ocean carrier’s limitations of liability under the Carriage of Goods by Sea Act (COGSA). In addition to addressing the extent to which third parties can claim COGSA’s benefits, the case should resolve some questions about the contractual roles played by the various parties in modern multimodal transportation. In the 68 years since COGSA was enacted, this will be only the fourth time that the court has decided a case implicating the Act.

Third-year student Nicholas W. Earles is assisting professors David Robertson and Michael Sturley in briefing Stewart v. Dutra Construction Co., No. 03-814, in which Robertson and Sturley are co-counsel for the petitioner. Sturley was the primary author of Stewart’s successful petition for certiorari.

Petitioner Willard Stewart was injured on a dredge in Boston Harbor while working on the Ted Williams Tunnel “Big Dig.” The Jones Act provides generous remedies to “seamen,” who must have an “employment-related connection to a vessel in navigation.” The courts of appeals have defined “vessel” in several different ways. This case seeks to resolve the definition of the term under the Jones Act and to decide whether a special purpose watercraft, such as a dredge, qualifies as a Jones Act vessel.

“The chance to work—to really work—on a Supreme Court case is rare, even for lawyers. I am very grateful that, as law students, Alex, Garrick and I have been afforded such an opportunity by Professor Sturley,” said Harbin. “I think it speaks volumes about both the high caliber of the UT faculty and the incredible academic and professional opportunities that the UT faculty is capable of passing down to its students.”

Numerous School of Law faculty members are working on cases before the U.S. Supreme Court this semester. In addition to the work of professors Jordan Steiker, Rob Owen (both for Tennard), David Robertson (for Stewart) and Michael Sturley (for Kirby and Stewart), Law professors Sarah Cleveland, Douglas Laycock, Thomas McGarity and Lawrence Sager are also participating in litigation before the court.

The university’s School of Law is also one of the top law schools to supply law clerks to the U.S. Supreme Court.

For more information contact: Laura Castro, School of Law, 512-232-1229.