Newnham in America

Until this summer, my only experience of America was a day’s gallivant in New York State whilst visiting family in Toronto. I was five. Needless to say, I remember very little. However, this was all to change on 1^st July when I boarded a trans-Atlantic plane to take up a three month internship at the Office of Capital Post-Conviction Counsel in Jackson, Mississippi. Something I would not have been able to do had it not been for the generous support of the Newnham US Alumnae from whom I was lucky enough to receive this year’s $4000 Travel Grant.

Last Christmas I began a serious search for legal internship opportunities. During this search, I came across the charity Amicus which sends English solicitors and barristers, as well as some law students, abroad to assist lawyers whose clients are on Death Row. Unsurprisingly, a large number are sent to the USA, particularly the Southern states where the use of the death penalty is far more prominent. These states are also the ones with a larger black African-American population, a greater incidence of poverty and a population that achieves poorly within the education system. Whilst I had been lectured on all of this, and many other aspects of my internship, on training weekends it still came as quite a shock to see just how much issues of racism, poverty and poor education, as well as political and media pressure, have to play in the eventual assignment of the death penalty.

My internship consisted in equal measure of both practical investigation and legal research. Initially, I was set to work on the case of a young man, W, who had been sentenced to death for killing a 3 year-old child in an uncharacteristic fit of rage. Over the months that I investigated his case and got to know W, it became abundantly clear that his sentence was very much undeserved. Whilst I do not condone his actions, on further investigation it was discovered that he was particularly slow, had known next to nothing of family life and had in many respects taken on too much responsibility too young. This type of mitigation had been entirely ignored by W’s trial lawyers. Thus, a large part of W’s argument for his Post-Conviction Review was centred round a claim for ineffective assistance of counsel (IAC). Periodically, I would visit W and update him on the progress of the investigation.

I was initially rather uncertain about speaking to the clients, mainly because I thought it would be difficult to strike up a rapport, through toughened glass and a telephone, with someone with whom I had very little in common. I was also acutely aware of the fact that I was a fresh-faced 20 year-old who had been assigned to work on what was essentially their only chance of life. If I had been in their position, I would have been a little uncertain myself! I needn’t have worried, though. I actually found it very easy to strike up conversation and, other than discussing various points of law, found a great number of other mutual topics of interests. It was also fascinating learning how they found ways to entertain themselves. For example, in order to play cards, inmates would lay a towel out on which they would slide cards, made out of loo paper, backwards and forwards between their cells. I realise that many people reading this may find it difficult to believe that anyone who had killed could be pitied or, even, liked. However, on meeting with my clients, it was often difficult not to do so because they became people as opposed to just Death Row inmates. People who were in obvious discomfort when talking to me given the fact that, among other things, their wrists were shackled to their waists on a chain too short to hold the phone with any ease. By the end of any conversation, their wrists would be marked by deep, red impressions left by the handcuffs. Having said that, there were clients whom I found very difficult to deal with due to the nature of their crimes and their attitude but this was the nature of the internship and, consequently, I believe I have learnt some truly invaluable client contact skills.

The ‘gritty’ side to my work was most definitely the investigations. This was partly because I struggled with Mississippian ‘cuisine’. I’ve eaten at more fast-food restaurants and ‘Southern Home Cooking’ establishments this summer than I have in the last 5 years! It also took a while to get used to US long-distance driving and how it appears tail-gating, undertaking and jumping lights are all positively encouraged. Aside from this, though, turning up on doorsteps, often in rather unsavoury neighbourhoods, was quite an experience. On one memorable occasion, I interviewed a woman living in ‘The Projects’ whilst ignoring the cockroaches crawling along the arm of the sofa on which I was perched!

The other half of my time was spent writing two research reports. Both of these reports focussed on points of law relevant, in particular, to the case of G: a largely incomprehensible client, in many ways, who did very little to endear himself to my office. However, much of this was to do with his mental state and the office is currently awaiting confirmation that he is schizophrenic.

My first research paper looked into whether an IAC was possible when the defendant had proceeded with hybrid representation during his trial and, if so, whether there were any differences as to how an IAC argument is set forth in such a situation. There are three types of representation that may occur in an US criminal trial. Firstly, an accused has the right to be represented by an attorney, a right afforded to them by the Sixth Amendment Right of the United States’ Constitution. Secondly, the accused may, should he elect to do so voluntarily and intelligently, waive this Sixth Amendment Right and proceed without any assistance. This is known as proceeding pro se and is provided for by the case of Faretta v California[1]. The final form of representation is less common as it is at the discretion of the judge whether to allow the defendant to proceed in such a manner. It is known as ‘hybrid representation’ and is acknowledged to “encompass both the participation of the defendant in the conduct of his trial when he has not effectively waived the assistance of an attorney to defend him, and the participation by an attorney in the conduct of the trial when the defendant is proceeding pro se."[2] In this situation the attorney is termed to be that of ‘co-counsel’ to the defendant. This is the form of representation with which G proceeded. My second paper researched whether an attorney, in the face of his client’s clear objections to such a strategy, may put forward a defence of insanity. I found this particularly interesting as the question underlying this is essentially whether the client should have autonomy over the fundamental direction of his defence, even if this would mean he be found guilty when he would not have been had a different strategy been undertaken.

The most difficult side to my internship was not the details of each client’s offence or the photos that I stumbled across in their case files, nor was it dealing with difficult clients such as G or members of the victim’s family. For me, it was the number of innocent and mentally retarded clients for whom we were working. One of these was M who has spent the last 29 years, his entire adult life, on death row in Parchman. You don’t have to hold any sort of medical qualifications to realise very quickly that M is slow and would have been incapable of committing the crime for which he is accused. What is all the more frustrating is that countless errors much earlier in his case have resulted in what should have been another primary suspect ‘slipping through the net’, as it were. The police at the time, anxious to quell the public outcry, ignored other evidence once M was brought into the picture and so focussed on prosecuting him instead. However, I was lucky enough to be around on the day that one of our clients, R, won his appeal and his sentence was reduced to life without parole. Sadly, R is so mentally retarded that he had never understood that he was facing the death penalty and so, for him, the only difference in his life is being moved to a new cell.