Death Penalty Internships in the American South
In 2000, the University of San Francisco (USF) School of Law established the Keta Taylor Colby Death Penalty Project (KTC Project) to involve students in work aimed at the interim reform, and ultimate abolition, of the death penalty in the United States.1 In the twelve years since its creation, the KTC Project has conducted educational programmes, sponsored empirical research and consulted with capital defence attorneys on cases, but its principal activity has been the Southern Internship Programme, which each summer has sent six to ten law students from the San Francisco Bay Area to spend ten weeks in the South working with capital defence attorneys.
The Southern Internship Programme
The Southern Internship Programme was founded in 2001 to respond to the crisis in capital representation in the South.2 Since its inception, 76 students have participated in the programme, including three who participated twice. In its first year, the programme sent USF students to the newly established state post-conviction offices in Louisiana and Mississippi, offices whose funding and staffing were far too low to handle the number of cases assigned by the courts. The following summer, the programme also sent students to the state-wide capital trial office in Mississippi, and in succeeding summers, students were sent, at various times, to capital defence offices in Alabama, Arkansas and Texas. During four of the summers, students from Berkeley Law were included in the programme. In preparation for the internship, during the spring semester preceding the internship, students attend four training sessions covering death penalty law and practice, with particular emphasis on conditions in the South. Students receive a stipend to cover their travel and living expenses for the summer, and the project provides each pair of students with a rental car.
All the interns work on state death penalty cases.3 By way of background, a state death penalty case proceeds through four stages: trial, direct appeal, state post-conviction, and federal habeas corpus. At trial, the prosecution must prove that the defendant is guilty of capital murder (as defined by the particular state’s statute), in which case the trial proceeds to a penalty phase where additional aggravating or mitigating evidence may be introduced and the sentencer (usually a jury) decides whether to impose the death penalty. If a defendant is convicted and sentenced to death, the defendant appeals to the supreme court of the state, raising any issues which appear in the trial record. If unsuccessful on appeal, the defendant may file a petition in state court for post-conviction relief, raising issues based on evidence outside the trial record, for example evidence that the defendant’s counsel was ineffective for failing to adequately investigate and present the defence case. If unsuccessful in state court, the defendant may then petition for habeas corpus in federal court, claiming that his or her federal constitutional rights were violated in the state proceedings. At each stage of the case after the trial stage, the defendant will be confronted with elaborate default rules that may bar claims not properly raised at the prior stage.
Each year, one pair of interns is assigned to the Mississippi trial office, where they work on trial-level cases and occasionally on appeals. The remaining interns work on state post-conviction or federal habeas corpus cases, with the majority working on cases in state post-conviction, the one stage where the defendant has no federal constitutional right to appointed counsel.4 The work of the interns and the range of their experiences vary according to the needs of the offices and the procedural posture of the cases when the interns arrive. In general, each intern’s experience includes meeting with the client; performing in-office legal work such as reviewing files and transcripts, researching legal issues and drafting claims, and engaging in out-of-office investigative work, including interviewing witnesses and gathering documents from courts, hospitals and schools. The interns write a mid-summer report on their work and a final ‘wrap-up’ at the end of the internship, and many write or call at other times to discuss issues in their cases. The supervising attorneys also write brief evaluations of the interns’ work at the end of the summer. These are some of the interns’ stories.5
Most interns report that the most powerful and most memorable experiences of the internship come from meeting and working with the clients.6 Leslie (intern in Louisiana, 2003) put it this way: ‘After this experience [visiting the client on death row], I cried and cried – it is quite something to speak to someone for three hours in a row, looking into his eyes through a layer of mesh, knowing the state may well execute this soul.’ The relationship goes two ways. In 2002, Miriam wrote from Mississippi:
When I was visiting [the client] for the last time, and I was leaving, he said to me: ‘Thank you so much for all of your work. Thank you for everything. You have worked harder in these two months than any of my lawyers have the entire time I have been on death row. Whatever happens to me, you can know that you did your best. Thank you.’
In 2008, Amelia and Lori interned with the Mississippi trial office and primarily worked on one case that was set for trial seven weeks after their arrival. The client was an African-American man in his forties with a long criminal history involving drugs, weapons and a prior homicide (occurring at about the same time as the charged capital murder), for which he was serving time in a Tennessee prison while he was awaiting trial in Mississippi. He was charged with murdering a young white woman in a virtually all-white county. Everything about the case pointed to the likelihood of a death sentence. The interns were assigned to work with the client to develop a mitigation case. Discovering and presenting mitigation evidence – evidence about the background and character of the defendant – in the penalty phase of a capital trial is often the primary defence focus in a capital case, and the difference between life and death for the defendant. Most capital defendants are the products of poor, highly dysfunctional families where physical and sexual abuse of the children are common and where often there is a history of mental illness and substance abuse, sometimes spanning several generations. The defence presents the defendant’s story to the jury – the mitigation evidence – to explain the defendant’s actions and to evoke sympathy.
Although a mitigation investigation should be conducted by a trained mitigation specialist or investigator, offices with limited resources may be forced to rely on interns to do much of the legwork. During the seven weeks leading up to the trial date, Amelia and Lori visited the client regularly and worked tirelessly to develop a mitigation case, seeking out and interviewing family members and other potential witnesses who knew the client, and gathering documentary evidence. Since the prosecutor’s decision to pursue the death penalty is often greatly influenced by the position taken by the victim’s family members (and the likely impact of their testimony at the penalty phase), recently some capital defenders, inspired by Sister Helen Prejean (author of Dead Man Walking), have attempted to reach out to those family members. With the approval of their supervising attorney, Amelia and Lori decided to visit the victim’s mother. They were unsure what to expect, but the mother invited them in, offered them tea and talked with them for three hours. In Amelia’s words: ‘We talked and cried and hugged. She told us about the person her daughter was and about how much she missed her.’ The mother said she had been against the death penalty all her life and was relieved that she was not the one to decide the sentence.
Perhaps in part because of the mitigation case that Amelia and Lori were able to build or because of their visit to the victim’s mother and her response, three days before the trial was to begin, the district attorney offered to take a plea to life without the possibility of parole. When the attorney and the interns told the client of the offer, he did not immediately accept it. Eventually, on the day before trial was to begin, the client called Amelia, and after discussing his situation further, he agreed to take the plea. Capital defence attorneys consider any result other than an execution a victory, and given the circumstances of this particular case, the plea deal was an unexpected victory. However, Amelia was deeply troubled by the result because she would remember that she had played a role in ensuring that her client would spend the rest of his life, and die, in prison.
Visiting Prisons and Jails
All of the clients are incarcerated, either in prison on death row or in jail awaiting trial. Most of the interns have never been inside a prison or jail prior to their internship, and are deeply affected by their encounter with life behind bars. As a rule, the clients, particularly those on death row, have few visitors, so the clients are particularly grateful for the visits by the interns for reasons going beyond what the visits contribute to the litigation of their cases. Consequently, the offices often have the interns visit multiple clients on the same day. In 2006, Stacey actually spent three days in Angola Prison (Louisiana) visiting more than a dozen death row prisoners to gather declarations concerning a prison disturbance affecting her client.