Category Archives: Human Rights

Death row cases – my experience and how to get involved

Competition for training contracts and pupillages has never been so fierce. Aspiring solicitors and barristers face cut-throat rivalry, not just from fellow vocational course graduates, but from graduates in previous years, whose qualifications remain valid for up to five years. Hence, with demand for positions at an all-time high, becoming a lawyer for a living requires a demonstrated commitment to the law in practice, as well as in theory.

Legal work experience is the key. In the UK, however, opportunities open to students are, for the most part, restricted to passively observing. Such opportunities are undoubtedly valuable, but can hardly be described as work experience. Therefore, aspirants need to get ‘hands-on’ with real cases. For those who can afford to go, there are opportunities for assisting over-burdened lawyers in the United States.

Death penalty cases

Richard Murtagh and Alex Davey protest the execution of Joseph Burns outside Mississippi State Penitentiary in July 2010.

Richard Murtagh and Alex Davey protest the execution of Joseph Burns outside Mississippi State Penitentiary in July 2010.

Richard Murtagh and Alex Davey protest the execution of Joseph Burns outside Mississippi State Penitentiary in July 2010.

One might assume that capital defence work pays handsomely — after all, what could be more demanding than fighting to save the lives of one’s clients?

In reality, though, capital defence lawyers are the poorest paid in the business, earning less, on average, than the UK minimum wage, while resourced by a tiny fraction of the budget that is available to prosecutors. As a result, capital cases tend to attract sub-standard defence lawyers, who know they can get away with shoddy work because society takes the view that their clients are lucky to be represented at all.

There are, however, a small number of dedicated defenders who believe that the law should be faithfully applied, even in cases involving the worst atrocities. These lawyers are the most noble in the US, but with the best will in the world, one lawyer can only be in one place at any one time. Hence, two charities, Amicus and Reprieve, were set up to assist by sending dedicated law students to help. In 2009, I was fortunate to be one of those students.

After attending two training weekends in London, I was sent by Amicus to assist Glenn Swartzfager at the Mississippi Office of Capital Defence Counsel.

Boarding the plane at Heathrow, I expected to be home in three months — the minimum commitment required. Little did I know that, in fact, I had tasted my last cup of Tetley for the next ten months! I funded this time abroad with personal savings and credit. And being a part-time Open University student, I was able to take my legal studies “on the road.”

In a moment, I will discuss three cases that I assisted with. But first, I think it’s important to say a few words about managing expectations.

As a budding practitioner, you may be wondering what an internship would entail for you. The best answer I can give is: it depends. A lot of ground may be skipped by assuming you are a diligent, reliable individual with a knack for legal research and writing. If so, you can improve your odds of getting away from the photocopier occasionally by taking the following three factors into account.

The time of year is important. If you go during the holidays, you may find yourself working alongside other interns — who, like you, will be trying hard to get a taste of real lawyering. As an Open University student, my holiday occurred when most law students are back in class. This made a big difference. Therefore, if possible, I advise going when other students are unable to. A gap year is probably the best way to achieve this.

Execution dates may be relevant. The lawyer I worked for handled post-conviction appeals. I saw how life at an appellate office is quiet until just before a client’s scheduled death… then things become manic. This is when you could be sent to find last-minute witnesses, or asked to conduct research into possible new legal arguments. Texas kills the largest number of inmates per year, but, for this reason, it attracts the largest number of intern applications. Therefore, you may wish to consider a state other than Texas. Of course, if you are placed with a trial lawyer, execution dates will have no bearing on the work you do.

Building trust is essential. The onus is on you to prove that you are reliable. Many prospective interns say the right things to get the placement, but after arriving, a few find their motivation waning unless the lawyer is constantly patting them on the back. Work hard and have faith that your diligence will be noticed.

Lastly, it is worth remembering that even if your whole internship were to be spent at a photocopier, that would still count as ‘paralegal’ work for your CV, not to mention the glowing reference you could expect from a lawyer who had more time to fight for clients because of you.

I was involved in three cases — those of Gerald Holland and Joseph Burns, in which I helped to write clemency petitions (presented to the State Governor after all legal appeals have failed), and the case of Jeffrey Davis, in which I was sent to find mitigation witnesses.

Gerald Holland

Gerald Holland

Gerald Holland

A combination of violent temper, alcoholism and brain damage led Gerald to murder a young girl who stayed at his home. With his execution just weeks away, I was given two issues to investigate.

Firstly, Gerald was pronounced clinically dead at age 13 after falling asleep next to a leaking gas fire. His brain was starved of oxygen for a number of minutes. Tests later found indications of brain dysfunction. The jury was not informed. While brain damage could not excuse what Gerald did, it might have helped the jury to understand why he did it.

Secondly, jurors were overheard making comments which cast a doubt on their ability to decide impartially.

It took two weeks for me and another intern to track-down and interview former jurors, and to research mental deficiency grounds for the clemency petition. The Governor denied it within two hours. Gerald was executed by lethal injection in May 2010.

Joseph Burns

Joseph Burns

Joseph Burns

Joseph was known for being a gentle, compassionate person. Then one day, he was dragged into a bad situation without warning, and his fate was sealed forever.

Joseph stopped at a motel with a friend. The friend proceeded to attack the manager and rob the cash stored in the motel’s money box. The pair fled. Unfortunately, agreeing to accept half of the cash would make Joseph “death eligible” when the manager died from violent injuries, which included stab wounds inflicted by a screwdriver.

Everyone, including the prosecution, accepted that it was the friend’s idea to steal the cash, and everyone agreed that it was the friend who struck the first blow. However, the friend gave evidence against Joseph in return for leniency. After blaming Joseph for most of the violence used, the friend is now enjoying freedom. Joseph was not so fortunate.

The jury that sentenced Joseph to die was given no information about his benevolent past, including that he had three loving daughters who suddenly faced growing up without a dad.

It took two weeks for me and another intern to track-down and interview Joseph’s friends, former lovers and other persons to whom he still mattered greatly (including his three children), and to research/write grounds for the clemency petition. The Governor denied it within two hours. Joseph was executed by lethal injection in July 2010.

Jeffrey Davis

Jeffrey Davis

Jeffrey Davis

When painful events shook his life, Jeffrey resorted to binge drinking and drugs. This tragically culminated in Jeffrey shooting his girlfriend one night, during a drink/drug fuelled argument. Jeffrey fled the scene in her car. The prosecution later argued that this made Jeffrey’s crime a combined murder and robbery, thus making him “death eligible” — even though the car was stolen after the shooting, so the victim’s trauma was made no worse by the theft element.

Within hours, Jeffrey had turned himself in to police. He confessed, claiming to have acted in an altered mental state after injecting cocaine. Jeffrey’s crime shocked the small-town community, who, until then, knew him to be a man of good character.

Twenty years later, I visited his town and was able to gather sworn affidavits from many people who remembered him. A number recalled Jeffrey doing odd jobs for them without pay. Best of all, I found a lady who had worked at the jailhouse where Jeffrey was kept until trial. The lady recalled Jeffrey being allowed out of his cell to wash police cars (which often had guns inside), as well as being trusted to accompany her to the supermarket to help fetch supplies. This proved that Jeffrey could be trusted to serve life in prison, where he would pose no threat to guards or other inmates.

Jeffrey’s death sentence was quashed by the Supreme Court in 2012. He has since accepted an offer of life in prison without possibility of parole.

Want to get involved?

There is information about becoming an intern on the Amicus and Reprieve websites.

Richard Murtagh is an LLM student at the University of Birmingham, he studied his LLB at the Open University.

This article originally appeared in Lawyer2B on 19th August 2014. Available at http://l2b.thelawyer.com/careers/pro-bono/death-row-cases-my-experience-and-how-to-get-involved/3024582.article. It is reproduced with the permission of The Lawyer2B. We are grateful for their support in this.

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Internships – a legal minefield?

The use of internships has come to the fore over the last year or two. However what constitutes an internship is contested, with no agreed legal or social definition of the term. This makes the use of internships a legal and ethical challenge.

The debate centres on the role of internships and whether or not they should be paid. With no definition of “internship” the term has been used to variously describe a short-term placements making tea and doing photocopying; to medium-to-long-term activity managing specific pieces of work. Similarly there have been substantial differences in whether the payment, ranging from no payment or expenses only to national minimum wage and beyond. It could be argued that these ambiguities make internships attractive to employers; however exploiting this also opens up the employer to risk.

As stated earlier the definition of an internship is contested. Lawson and Potter (2010) recognise this and shy away from providing a definition but do suggest the key features of an internship to be length, time commitment, work expectations and contribution. They suggest that an internship should last for a substantive period of time, generally 3 months or more; that the intern work set hours, potentially full-time; the intern must complete a specified piece of work and that their progress on this is monitored and evaluated; and that they make a significant and valuable contribution to the organisation, usually by undertaking work that otherwise would have been completed by a paid member of staff (Lawson and Potter, 2010: 4-5).

These features highlight two issues which are of interest from a legal perspective; firstly the requirement to work set hours, thus implying that there is an element of obligation on the part of the intern and control on the part of the employer; and secondly that they undertake work usually undertaken by paid staff. Both of these points raise questions about whether the intern is an employee for purposes of the National Minimum Wage Act 1998.

Two concepts relating to staff are defined in the National Minimum Wage Act 1998. The first is that of “worker” and the second is that of “employee”. The concept of worker is quite broad and includes the narrower term of employee. To be considered a worker an individual must be working under a contract of employment or other contract which requires them personally to carry out the work. The Employment Rights Act 1996 defines an employee as someone who works under a contract of employment. Case law has drawn out a number of tests which are used to identify if someone is an “employee” including whether a mutuality of obligation exists; whether the employer has control over the work of the employee as well as whether a contract of employment exists and whether the individual must personally carry out the work. The terms worker and employee are particularly relevant as employees are entitled to more employment rights than workers, for example only employees are entitled to claim unfair dismissal; and are entitled to redundancy pay amongst other rights. Applying these tests to the key aspects of internships as defined by Lawson and Potter (2010) it can clearly be seen that an intern could be conceived to fall within the definition of worker, and potentially also employee. This is important, not only from the financial perspective of entitling the intern to national minimum wage, but also from the perspective of the additional rights which accrue from being employed rather than a volunteer.

The issue of payment of interns, although not the definition of intern itself, was considered in the only case on internships so far, Employment Tribunal case Vetta v London Dream Motion Pictures (2009, unreported). While Ms Vetta had applied for a film production internship post advertised as offering expenses only, the Tribunal found that workers engaged on an expenses-only basis are entitled to payment at least in line with the national minimum wage plus payment for the holiday they accrue. This would appear to clarify the position that unpaid or expenses only internships, where the intern is clearly doing work that benefits the organisation, are unlawful in terms of the National Minimum Wage Act 1998. At this juncture it is useful to note that failure to pay national minimum wage when it is due is a criminal offence in terms of s31 of the Act.
So what of the argument that interns and actually a type of volunteering. Again there is no legal definition of volunteer per se, however case law in this instance is more helpful. In X v Mid Sussex Citizens Advice Bureau [2009] EWCA Civ 340 on 10 March 2009; and Melhuish v Redbridge CAB IRLR (2005) 419 it was confirmed that volunteer agreements can be binding in honour only, i.e. they are not contractual; and that volunteers can only be paid reasonable out-of-pockets expenses. This position is also emphasised in Migrant Advisory Service v Chaudri EAT/1400/97 (28 July 1998) which highlighted that employers cannot escape their employment obligations by calling someone a volunteer, the tribunals will look behind the term to determine the actual nature of the role.

However for those organisations that engage volunteers a further complication exists in terms of the National Minimum Wage Act 1998. In trying to ensure that “true volunteers” i.e. those who wish to voluntarily donate their time and expertise, are not unintentionally caught by the provisions of the legislation, the Act defines a “voluntary worker” as “a worker employed by a charity, voluntary organisation, an associated fund-raising body or a statutory body; who under the terms of his employment is entitled to no monetary payments of any descriptions except reasonable expenses incurred in the performance of his duties; and no benefits in kind of any description other than the provision of some or all of his subsistence or reasonable accommodation related to his duties.” (s44(1) National Minimum Wage Act 1998). The question arises as to whether or not an intern constitutes a voluntary worker for purposes of the Act. Key amongst the issues here is the intention in relation to the internship, if there is an element of obligation on the part of the intern and control on the part of the employer, then this would likely be seen as an employment rather than a volunteering relationship and therefore would not fall under the definition “voluntary worker”. If the arrangement is less prescriptive with the intern under no obligation as to hours or work; the organisation would still need to be careful not to fall foul of the provisions around expenses and benefits in kind by only paying out-of-pocket expenses and limiting benefits-in-kind to those which are necessary for the role. Provision of additional benefits-in-kind or unsolicited expenses might be considered as payment and therefore imply an employment relationship (Melhuish v Redbridge CAB IRLR (2005) 419)).
Thus it can be seen that there are key differences between an intern as defined by Lawson and Potter (2010) and a volunteer as defined in case law. The most substantive of these is the difference in expectation or obligation. Volunteers are bound in honour only whereas the expectation on an intern (even where it is not contractual) appears to constitute a more substantial obligation. That obligation (to work set hours, on specific pieces of work as directed by the employer) would seem to indicate that in most circumstances an intern will fall within the definition of worker for the purposes of the National Minimum Wage Act 1998, as confirmed in Vetta v London Dream Motion Pictures (2009, unreported). The need for clarification of the law in this area would appear to be obvious, the question is whether there is political will to change it?

Rosemarie McIlwhan
Lecturer in Law
School of Law, The Open University

Rosemarie is a research consultant with the Third Sector Internships Scotland programme http://www.3rdsectorintern.com

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