Geraghty, T F --- "The Criminal/ Juvenile Clinic as a Public Interest Law Office: Defense Clinics; The Best Way to Teach Justice" [2007] LegEdDig 2; (2007) 15(1) Legal Education Digest 5

The Criminal/Juvenile Clinic as a Public Interest Law Office: Defense Clinics; the Best Way to Teach Justice

T F Geraghty

[2007] LegEdDig 2; (2007) 15(1) Legal Education Digest 5

75 Miss L J 699, 2006, pp 1-16

There is a debate among clinicians about how clinical programs should be structured, what kind of legal work they should do, and the extent to which clinical programs should stress the involvement of students and faculty in social justice issues. Some believe that in recent years, clinical education may not have been true to its roots as it has moved away from emphasising the provision of legal services to the poor. Others rightly assert that because clinical programs are part of the law school’s teaching mission, service should be balanced with appropriate opportunities for reflection on lawyering experiences.

In this article, I argue that both objectives can be realised through the creation and maintenance of a clinical program that is focused on making justice systems better and that clinical programs that focus on criminal justice have perhaps the best potential for teaching justice.

Story 1: We first represented Johnnie Brown in 1979 when he was charged with burglary. I negotiated a plea for Mr. Brown that resulted in him enlisting in the Navy. He remained in the Navy for years and then was dishonourably discharged, the signs of mental illness beginning to show. Mr. Brown came back to Chicago where he soon was charged with two armed robberies and a sexual assault. My students and I represented him again. We won one trial and lost another. Mr. Brown was sentenced to eight years in the penitentiary.

While in the penitentiary, from 1985-1992, Mr. Brown was diagnosed with chronic schizophrenia. After his release from the penitentiary, he promptly picked up another charge — an armed robbery. The weapon in question was a knife. The proceeds of the robbery: twenty-five cents and an adult book store token. We declined to represent him again thinking that he might do better with another lawyer. He was again convicted. This time he was sentenced to thirty years in the penitentiary based in large part on his criminal record. Mr. Brown’s family contacted us after his conviction and sentence. We found that no evidence had been presented at trial or at sentencing concerning Mr. Brown’s mental health problems. We initiated state post-conviction proceedings and lost in the Illinois courts. We lost in the Federal District Court, but won in the Seventh Circuit. The Seventh Circuit held that Mr. Brown had received ineffective assistance at trial because his mental health status was not presented at trial or at sentencing. A succession of students was involved every step of the way.

After the case was remanded to the state court and dismissed upon the motion of the State, the newly assigned judge to the case said to Mr. Brown:

On behalf of the Chief Judge of the Circuit Court of Cook County, the Honorable Timothy Evans, and on behalf of the Presiding Judge of the Criminal Division, I want to extend to you my sincere apology for what has happened to you in the last 12 years on this case.

You did, in fact, as the Seventh Circuit Court of Appeals indicated, receive the very worst that the criminal justice system has to offer. I am shocked and ashamed at the conduct of your lawyers in this case.

The State’s Attorney’s Office also is deserving of criticism in this case too, because it seems to me that it was impossible for the State’s Attorney not to know that the affidavit presented to the Court was perjurious sic as the Seventh Circuit again found.

Your lawyers, when given an opportunity to straighten out their incompetent representation of you, chose to lie, and chose to lie to the Court, sending you on a 12-year saga of up and down the court system.

I’m also, Mr. Brown, aware of my obligations under In Re Himel, and I intend to fulfil my obligation in that regard. I can only say to you that I am deeply sorry, I am deeply sorry.

I agree with the Seventh Circuit in its entirety. I think your lawyer who picked up your case the day of your trial and then proceeded to try you for a Class X felony, having met you an hour or so earlier, was in exhibition of gross incompetence.

I extend to you, as I indicated, the apologies of our court system. It offers better when it functions properly. Your lawyers thought more of hiding their incompetency than your freedom.

Good luck to you, Mr. Brown.

Story 2: Dino Titone was charged in 1983 with two counts of murder. The two victims were found bound in the trunk of a car, shot to death. According to Mr. Titone’s family, the lawyer they hired to represent Dino demanded money from them (in addition to a fee) to give to the judge in order to guarantee that the death penalty would not be imposed. After the money was allegedly given to the judge, the Greylord Scandal broke in Cook County. The judge got nervous, returned the money, convicted Mr. Titone, and sentenced him to death. My then colleague at Northwestern, Ian Ayres, had been appointed by the Illinois Supreme Court to represent Mr. Titone. Together, we appeared in court to file a petition alleging that the judge, before whom we were filing the petition, had extorted money from our client. The case was assigned to another judge and, of course, our petition was dismissed in the trial court. Numerous appeals later, and after the judge was sentenced in federal district court for his corrupt judicial behaviour, a very respected trial judge granted Mr. Titone post-conviction relief.

Story 3: In 2000, Sarah Sanchez was charged with murdering her new-born infant. A penniless immigrant from Guatemala whose husband had left her, she gave birth alone in her apartment and nearly bled to death before she was found by a family member. Her infant daughter died before medical help arrived. The State charged that Sarah suffocated her child, claiming that Sarah told the police that she put a blanket over her new-born child’s mouth to prevent her family members from hearing the child cry. Sarah had not told her family that she was pregnant. Our expert witnesses countered the State’s assertion that Sarah was guilty of murder. A physician familiar with the effects of blood loss on cognitive ability testified that Sarah could not have made an accurate statement about the death of her child. A nationally-known neonatologist testified that the baby died from respiratory failure as the result of a pre-existing infection, not from suffocation. The judge found our client not guilty.

Story 4: An eleven year old boy was taken to the police department and questioned about the murder of his eighty year-old neighbour. The murder occurred a year before the interrogation. The child confessed to the murder after a relatively brief interrogation. No physical evidence tied the child to the murder, no witnesses saw the child with the victim. The child claimed that he confessed because he was told he could go home if he told the police he was guilty.

At trial, the child was represented by privately retained counsel. No motion to suppress the child’s statement was made in the juvenile court trial. The child was convicted of murder. Our clinic took the case on appeal. Appeals failed in the Illinois Appellate and Illinois Supreme Courts. A federal district court judge granted habeas relief, and the Seventh Circuit affirmed, finding that our client’s confession was involuntary.

How do these stories tie together to support the proposition that clinical legal education in the criminal justice system provides, perhaps, the best form of clinical education for law students?

(1) Caring about the Client: In an age when so many decisions regarding representation are made on business rather than professional considerations, representation of criminal defendants in the law school clinical context teaches basic, and perhaps now lost, values of the legal profession. A law school clinical program may provide a student with her only opportunity to interview, to represent, and to care about a client from the time she enters law school until she makes partner. Hopefully, the lessons learned from this experience in law school will be remembered long after graduation. This will be especially true if these lessons are learned in the context of the representation of criminal defendants.

Why? Because no client is so disenfranchised and faces more severe consequences as the result of his legal predicament than the indigent criminal defendant.

If law students are not provided with these experiences in law school, they may wait several years after graduation before they are given the authority to manage even complex relationships with clients. If a law student can develop a meaningful and constructive relationship with a criminal defendant facing trial and imprisonment, it is likely that [he/she] will have the skills necessary to establish constructive lawyer-client relationships with even the most sophisticated business client. At a minimum, [he/she] will have as the result of her clinical experience in law school, the experience upon which to base continued learning in this most important area. Nearly all in the legal profession agree that the ability to make relationships with clients is key to successful representation and to successful practice.

(2) Demonstrating and Developing Lawyering Skills: Because of the nature of the cases taken on by a criminal and post-conviction clinical program, the model of representation must be one in which students and clinical faculty collaborate. It is in this context that clinical faculty can best model lawyering skills and in which the modelling of lawyering skills becomes a credible way of imparting learning. In this setting, the clinical teacher puts her skills on the line, just as the student does, allowing her (the teacher’s) skills to be modelled and judged by students.

The involvement of clinical faculty at this level of intensity in the representation of clients should not diminish in any way the role of the clinician in the academy. In fact, the ‘colleague’ model of supervision should provide clinical faculty with current and valid information about the practice that is relevant and that encourages meaningful critiques of practice informed by actual experience. Without day-to-day experience working with clients in the justice system, it is difficult for faculty to construct meaningful messages about how students should practice.

(3) Demonstrating a Model of Representation to Students, and to Lawyers and Judges in the Criminal Justice System: The role of law schools is to provide legal education to students and to engage in activities (scholarship, the study of legal systems, continuing education) that will promote the fairness and efficiency of our legal system. With the advent of clinical legal education, law schools have become more engaged in the teaching of practice, and clinical law professors have taken the lead in developing links between legal academia and the practice. For the most part, however, the practicing bar has been well ahead of law faculties in developing new approaches to practice. The leaders in practical initiatives to change the practice have, for the most part, been lawyers, not law professors or law schools.

This should change, particularly as the historical paradigm relates to criminal practice. There should be closer collaborations between the practice and the academy. While the private bar will take it upon itself to promote advances in the practice in practice areas in which there is a profit to be made, the same does not hold true in criminal justice. The clients who can afford to pay lawyers are few. The private criminal defence bar is relatively small, with some, but not overpowering influence on the way in which criminal courts and associated agencies operate. As a consequence, our criminal justice system cries out for independent appraisals and assessment. Much of this work is now accomplished admirably by such organisations as the National Association of Criminal Defence Lawyers and the National Legal Aid and Defender Organization. Until recently, however, law schools have had little to do with developing initiatives for reform.

Fortunately, this is changing, and it is changing primarily because law school clinical programs have become involved in criminal justice reform initiatives.

The educational benefits that flow to students who participate in such programs are many. Through representation of individual clients, students see the strengths and weaknesses of our justice system first hand. Almost any case could have been prosecuted, defended, and tried in a better fashion.

(4) Strategic Decision Making for the Long Haul: Engagement of students in a criminal defence clinic can give them a chance to see how lawyers can simultaneously represent the interests of an individual client while identifying and addressing issues that affect the interest of a large group of persons similarly situated. Good defender organisations have recognised this fact. They pay attention to the systemic problems that affect the interests of their clients including the quality of police investigations, substance abuse, mental health, and after prison support. But these organisations are already over-taxed with the burden of representing individual clients. Law school clinical programs that involve students in criminal defence work have a particular advantage in this area because they have the luxury of picking and choosing cases.

In some jurisdictions, this very fact creates tension between defender organisations and law school clinical programs. But it need not. In fact, law school criminal clinics working together with defender organisations have the capacity to make significant impact if they work together.

(5) Placing Representation in Social and Historical Context in Order to Demonstrate Why Effective Representation of Criminal Defendants Matters: Representation of criminal defendants has historical and social meaning in our society. The evolution of the right to counsel is the story of race, of poverty, of class. It is now the story of an ever expanding prison population composed almost entirely of minorities and the poor. Representation of defendants in law school programs should be contextualised, so that students recognise the historical significance of the service they provide as well as the challenges they will face in the future. Law school clinical programs that focus on representation of criminal defendants are particularly well-suited to teaching lessons that will hopefully support a continuing and positive development of human rights in our country and around the world.

Here are some of those lessons: (a) There seems to be consensus in our society that our criminal justice system is as good as they come. It is widely believed that our system provides the fairest trials, has the highest degree of accuracy, and exercises the most restraint in its efforts to protect society. But is the consensus based upon fact? A clinical program specialising in the representation of criminal defendants will allow future leaders of the bench and bar to make an informed decision about this crucial question; (b) There is consensus within the legal profession and within society at large that we can rely on government through defender organisations to provide adequate defence services. A student involved in a criminal defence clinic will be able to make a judgment about the correctness of that consensus; (c) Little attention is paid to the plight of those in our prisons and jails and to the long-term costs to our society of relying on the incarceration of so many. In part, this is because most in our society have never met a prisoner or have been inside a prison. A criminal defence clinic provides future leaders of the bench and bar with perspectives about the future of our prisons and jails as well as about our sentencing policy.

Clinical programs that focus on the representation of criminal defendants can help future leaders of the bench and bar to identify practices that in the future we must change. The practices ripe for change suggested by the six stories at the beginning of this essay include judicial management of criminal dockets to ensure proper preparation of cases, the pervasiveness of mental illness in the criminal justice system, police misconduct, judicial misconduct, the need to evaluate the reliability of certain forms of evidence including confessions and ‘snitch’ testimony, and the reliability of eyewitness identification. In law school clinical programs, teachers and students can ‘imagine’ justice systems that do not have these flaws. If they can imagine more ideal systems, they will also wonder why we do not create them. Some students may do more than wonder. They may act. They may take the lessons learned in the clinic to their life’s work. This is what teachers in criminal justice clinics hope for.