Category Archives: Legal education

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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Legal Education – the way forward?

Background

The landscape of the legal profession and legal education is changing. The Legal Services Act 2007 and the Legal Services (Scotland) Act 2010 have created new opportunities and challenges, not least opening the door to alternative business structures. In Scotland the new education and training regime for law students is in its infancy, as is the new framework for paralegals. In England the outcome of the Legal Education and Training Review in England is anticipated in the near future.
In these times of change questions arise as to how education providers can best prepare their students to meet these challenges. Regardless of the qualification provided educators want their students to have the best chance of gaining employment and thus need to ensure that they are given the opportunity to develop the relevant practical and professional skills.

The aim of the workshop was to consider some of these issues and opportunities by disseminating good practice and developing ideas on how to provide flexible learning for paralegals and law students that enhances their employability. The workshop took place on 29th April 2013 at the Open University in Scotland, Edinburgh. The workshop was chaired by Alison Miller of the Open University Law School and was attended by 13 academics from a range of HE and FE institutions including the University of the West of Scotland, Edinburgh College, Staffordshire University, Scotia Law Training / Stirling University and the Open University.

Presentations
Rob Marrs, Senior Policy and Development Manager (Education and Training Policy) at the Law Society of Scotland outlined the legal professional and educational framework in Scotland. He highlighted that only about 50% of those undertaking an LLB in Scotland are doing so for vocational purposes, the other 50% use it for other purposes so it is worth bearing this in mind when designing legal education. He added that one of the attractions of the LLB is the transferability of the skills developed in the degree. He explained that the route to qualification as a solicitor in Scotland changed in 2011 to be much more outcomes focused.

The Diploma in Legal Practice (PEAT 1) now has learning outcomes which each student must meet. This not only benefits students, but also employers as they now know that anyone who is starting a traineeship will have to have met at least these minimum standards to have passed the Diploma. The focus of the outcomes is five-fold: professional standards; communication; ethics; business, finance and practice management; and legal knowledge. There is also increased opportunity for students to specialise within the Diploma with 50% of the modules within qualification being elective. This ensures that students can build upon their legal knowledge making them more employable within their chosen field.

The traineeship (PEAT 2) is also now based on outcomes which are set to hone the knowledge and skills developed on the Diploma. There is formal monitoring every three months against these outcomes. This provides an opportunity for trainees and employers to gauge progress and to address any gaps.
The educational landscape for qualified solicitors has also changed with more flexibility in how they implement the required 20 hours of CPD each year. There is more online provision and generally more availability of CPD options.

Rob noted that the current economic climate may be affecting legal education and training as the number of people undertaking the Diploma have been down year on year since 2008 (c.30% reduction between 2008 and 2012) however, whilst traineeship numbers are down 2% in 2012 from 2011, they are up on what they were a few years ago.

Rob went on to outline the changes for paralegals. The key change in this area was the introduction of the Registered Paralegal Scheme in 2010. The scheme was developed by the Law Society of Scotland in conjunction with the Scottish Paralegal Association. The motivation for introducing the scheme was awareness of the growing professionalisation of the paralegal profession and the increasing numbers of qualifications available. The Registered Paralegal Scheme provides a defined career path and a means of professional recognition for paralegals. The scheme has a number of legal domains (areas of specialism) in which paralegal can register. To be able to register they must hold a relevant qualification (as defined in the scheme, and then undertake a one year of training period. If, at the end of this period, they meet the competencies outlined in the scheme they can become a Registered Paralegal.
Rob highlighted that the legal market is changing – the introduction of legal process outsourcing (LPO) has potential to create a substantial change in the market and is already affecting Scotland with one large LPO company based in Glasgow. The introduction of alternative business structures, if it happens, also has potential to change the market and could lead to the creation of paralegal owned firms. The introduction of more mass providers (e.g. the Co-operative) will also influence the market and increase the number of paralegals required. This means that paralegal education will become increasingly important.
Whilst paralegals are not regulated at present, their supervising solicitors are and the Registered Paralegal Scheme does provide a complaints mechanism. If a Registered Paralegal is found to have breached the terms of the scheme then they can be expelled from the scheme. Rob noted that so far only 1 complaint has been received and it was thrown out as being unfounded.

Tommy Cuthbert, National Relationships Manager at Skills for Justice outlined the unprecedented change in the legal market in England and Wales and in Scotland. This includes the introduction of alternative business structures, changes to legal aid, the recession, increase in fees for legal education, mergers of firms and court closures.

He outlined the Skills for Justice work developing Modern Apprenticeships and the context in which these were being introduced. In England and Wales there has been a commoditisation of legal services and an increasing search for new talent, not just among graduates but more widely. This increase in non-solicitor staff has meant that more staff providing legal services are unregulated. Skills for Justice launched the Higher Apprenticeship in Legal Services to meet this need.

Tommy highlighted that the smart way to provide legal services at reduced cost was to maximise the use of non-solicitor staff, including paralegals. He outlined that only 3 key areas are required to be completed by solicitors, all other legal work can be completed by non-qualified staff. This opens up opportunities for employers and paralegals.

Tommy suggested that there is a need for a pathway for schools leavers to gain entrance to the Registered Paralegal Scheme. The Skills for Justice Modern Apprenticeship could provide this pathway. It is an employer led and designed opportunity which will test competence and knowledge through a recognised structure. This apprenticeship is still in development and Tommy invited delegates to get in touch if they were interested in knowing more about it or becoming involved in the development work.

Rosemarie McIlwhan, Lecturer in Law at the Open University, discussed the research she conducted in 2013 with Alison Miller (also of the Open University) on ‘The provision of paralegal education in Scotland.’ (available at http://www3.open.ac.uk/near-you/scotland/p8_1.asp) This research built on Rosemarie’s 2010 research on ‘The provision of legal education in Scotland’ which outlined gaps in legal education generally and highlighted the issue of paralegal education specifically.

Rosemarie outlined how their 2013 research draws upon a survey of paralegals, employers of paralegals and providers of paralegal education. The research highlighted the issue of the term ‘paralegal’. Whilst the term ‘solicitor’ is a protected term under the Solicitor (Scotland) Act 1980, the term paralegal is not protected. This means that anyone can call themselves a paralegal regardless of what they actually do or what qualifications they have. The Registered Paralegal Scheme goes some way to addressing this as to be a Registered Paralegal you must reach a certain standard.

Rosemarie outlined that a number of qualifications for paralegals were offered in Scotland. She highlighted that whilst these covered a range of levels on the SCQF (Scottish Credit and Qualifications Framework) scale they were mostly qualifications at first instance and there were no real opportunities for further educational development for paralegals. She explained that the research had highlighted this as a gap in provision both in terms of needs of paralegals and employers.

Rosemarie also highlighted that gaps in provision exist geographically and in terms of flexible learning. The current provision of paralegal education does not cover the Highlands and Islands, nor does it cover the South of Scotland thus those wishing to undertake qualifications in these areas would need to travel to be able to do so. This is an issue as most paralegals surveyed as part of the research stated that they had undertaken their education whilst in employment. This highlights the other gap in paralegal education, which is the need for flexibility. There are limited options in terms of flexible learning as there are only a few providers who offer distance learning and none which offer online learning. The research highlighted that these are key areas where paralegals and employers would like to see further development.
There are also subject specific gaps particularly in relation to the newer legal domains under the Registered Paralegal Scheme and also in terms of transferrable skills. There was a need identified, particularly by employers, for business and management skills. Rosemarie highlighted that this would particularly be relevant if alternative business structures are implemented in Scotland and paralegals are able to become partners in a firm.

Discussion

Delegates raised a number of questions and issues. It was queried whether there is a need for a ‘senior paralegal’ within the Registered Paralegal Scheme or whether a qualification pathway is required i.e. to recognise paralegal’s on-going educational development.

The issue of the perception of the paralegal profession provoked substantial discussion. Delegates were clear that being a paralegal is a profession in its own right and is not a step to becoming a solicitor nor is it a lesser role. Many delegates commented on working with paralegals that were more adept in the law than solicitor colleagues. However delegates also commented that in their experience some people do not recognise being a paralegal as a distinct career choice and view it more as being a frustrated lawyer. Delegates felt that the Registered Paralegal Scheme and other such initiatives would help to address this view. Delegates also noted that some graduates were using their LLB and Diploma / Legal Practice Certificate (LPC) to access paralegal jobs in the hope that this would lead to a training contract however that firms were being very clear that this would not happen.

Regulation of paralegals was also an issue where strong views were put forward. It was suggested that formal regulation of paralegals may be required in the future, particularly if all of the changes in the legal profession mean that paralegals are working more independently. It was discussed that regulation of paralegals would provide protection not just for paralegals, their employers and solicitors but also for the public. Regulation would ensure that a person using the term ‘paralegal’ was qualified and competent to a certain standard, rather than at present where anyone can use the term.

Delegates discussed whether there is a need for dual qualified paralegals in the same way as increasing numbers of solicitors are dual qualified. It was highlighted that in many areas paralegals are already qualified to work across the UK because the areas of law are the same e.g. employment law. However it was also highlighted that as there are differences in the legal systems it may be beneficial to offer a module on comparative legal systems which would introduce paralegals from across the UK to the differences in the legal systems and which would enable them to work in all jurisdictions. It was noted that University of London offer a MOOC (Massive Open Online Course) and the Open University also offer free online courses (OpenLearn) in this area.

The issue of ethics was also raised. This is a key anticipated outcome of the Legal Education and Training Review in England, but it is already a core professional practice outcome in Scotland for solicitors and paralegals. In this context the question was raised about the ethics of unpaid internships and whether as educators we should encourage or support students to undertake such work as a means of enhancing their employability or whether we should take the view that such internships are unethical (and potentially illegal) so it is not in our students’ best interests to be involved in such practice. It was noted that the Law Society of Scotland will shortly be publishing guidance for solicitors on the issue of internships.

We would welcome further discussion of the issues, in particular the following questions:
1. Is there a need for further educational opportunities for paralegals, for example higher level qualifications beyond SCQF level 10, CPD etc.?
2. Is there a need for paralegal qualifications to be recognised / transferrable across the UK?
3. How can FE and HE institutions best meet the needs of paralegals and other law students in the current economic climate in a flexible manner and still ensure that they are prepared for the legal market of the future?

To reply please email Rosemarie.McIlwhan or Alison.Miller. Both of these email address end in open dot ac dot uk.
The Open University in Scotland
May 2013

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