Tag 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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2013: The legal year in review

2013 was a seminal year for legal education with the publication of the Legal Education and Training Review. It also saw the unprecedented step of lawyers across the UK refusing to attend court in protest against Government policy, and some ground-breaking new laws.

The Legal Education and Training Review (LETR) was a joint project between the Bar Standards Board, Solicitors Regulation Authority and the Institute of Legal Executives Professional Standards. Its purpose was to review legal education in relation to regulated and non-regulated legal services in England and Wales. The long-awaited LETR report was published in June 2013. Key messages of the report focused on quality and competitiveness, flexibility (including new pathways to qualification), talent management, ethics, new ways of working (including increased focus on workplace learning and the use of technology to delivery education), and the challenges of legal regulation. Three key recommendations were that further research was needed into how the Foundations of Legal Knowledge (the core part of the LLB) should be balanced, that there should be consideration of whether any amendment to those subjects is needed, and that assessment of legal writing, research and reasoning skills should be an integral part of the LLB. As these are important changes it will take time for Law Schools (including the OU Law School) to implement them so there will be no immediate impact on current students.

The Legal Aid, Sentencing and Punishment of Offenders Act 2012 came into force in April 2013 introducing substantial changes to the legal aid system in England and Wales, whilst in Scotland the Scottish Civil Justice Council and Criminal Legal Assistance (Scotland) Act 2013 introduced changes to criminal legal aid in Scotland. These changes to legal aid raised substantive concerns about access to justice and led to Scottish lawyers going on strike in 2013 followed by their counterparts in England and Wales in early January 2014.

The UK Parliament had a busy year passing 33 Acts, the most since 2010. Notable Acts include the Marriage (Same Sex Couples) Act 2013 which provides for same sex couples to get married, the Succession to the Crown Act 2013 which provides that succession to the Crown does not depend on gender, the High Speed Rail (Preparation) Act 2013 which gives the Secretary of State extensive spending power in relation to the preparation for HS2 and the Crime and Courts Act 2013 which includes changes to make the recruitment and operation of the judiciary more flexible and open to diversity. There was also extensive discussion surrounding the Draft Voting Eligibility (Prisoners) Bill which is the UK Government response to the ECtHR judgment on prisoner voting.

The legislatures in the devolved nations were also busy. The Scottish Parliament passed 14 Acts, most notably those relating to the 2014 Scottish Independence Referendum and the Land and Buildings Transaction Tax (Scotland) Act 2013 which will replace Stamp Duty Land Tax in Scotland. The National Assembly for Wales made good use of its power to legislate (introduced by the Government of Wales Act 2006) by passing 7 Acts, including the landmark Active Travel (Wales) Act 2013 which will make is easier for people to walk or cycle in Wales. The Northern Ireland Assembly passed 10 Acts, most notably the Criminal Justice (Northern Ireland) Act 2013. Also on constitutional note the date of Scottish Independence referendum was announced as 18th September 2014 and the Scottish Government published Scotland’s Future, its guide to what will happen if Scotland votes ‘Yes’ in the referendum. The Scottish Constitutional Futures Forum has provided extensive academic discussion on the issue of further devolution or independence for Scotland.

There were also some very interesting speeches by judges including Lady Hale on ‘What’s the point of human rights’, Lord Sumption on ‘The Limits of Law’, Lord Mance on ‘The Interface between National and European Law’ and Lord Neuberger on ‘Justice in an Age of Austerity’ as well as many high-profile cases, some setting important precedents or raising issues for further consideration. Also of interest was Prof. Alan Paterson’s lecture on the workings of the Supreme Court.

2013 set the foundations for what we will see in 2014 including potential change not only to the way legal education and training is delivered, but to how legal representation is provided and even potential change to the constitutional make-up of the UK. It will certainly be an interesting year.

Sources of further information / updates
Guardian Law http://www.theguardian.com/law
Times Law http://www.thetimes.co.uk/tto/law/
Law Society of England and Wales http://www.lawsociety.org.uk/
Law Society of Northern Ireland http://www.lawsoc-ni.org/
Law Society of Scotland http://www.lawscot.org.uk/
UK Court and Tribunal Service http://www.justice.gov.uk/about/hmcts
Northern Ireland Court and Tribunal Service http://www.courtsni.gov.uk/en-GB/pages/default.aspx
Scottish Court Service http://www.scotcourts.gov.uk/
UK Supreme Court http://supremecourt.uk/
Judicial Committee of the Privy Council http://www.jcpc.uk/
UK Human Rights Blog http://ukhumanrightsblog.com/

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Preventing sexual violence in armed conflict – the role of International Humanitarian Law

War is neither pretty nor fair. It generates human suffering, which is borne primarily by the civilian population, as seen in Syria which, over two years after protests erupted against President Bashar al-Assad, continues to be torn apart by armed conflict.

With rising levels of indiscriminate violence and a death toll of more than 70,000 there is little to distinguish it from a full-scale internal armed conflict. Summary executions, torture, the unlawful targeting of hospitals and medical personnel, and the alleged chemical attack in March are just some of the tragic features of this conflict. But war does not happen in a ‘lawless vacuum’. There is a body of rules designed to regulate conduct in armed conflict and, vitally, to reduce the human cost of war.

International Humanitarian Law (IHL) governs the conduct of armed conflict. It provides protection to civilians and those no longer taking part in hostilities (the wounded and POWs) and strictly prohibits the targeting of civilians. Furthermore, all sides in armed conflict must choose appropriate means and methods of waging war that spare civilian lives. That is what IHL demands of them.

However, applying the principles of IHL has become increasingly difficult on the modern field of battle which today can be in the street, a market place and homes – all far removed from the understanding of conventional warfare as waged when the four Geneva Conventions were adopted in 1949 (followed by two additional protocols in 1977).

As of 2011, 194 States have ratified the four Geneva Conventions making them universally applicable. Although Syria is not a party to Additional Protocol II, it remains bound by the Common Article 3 to all four Geneva Conventions 1949 which specifically regulates protection of victims in non-international armed conflict. Article 3 sets out fundamental rules applicable to situations of non-international armed conflict which prohibit the vast majority of acts happening in Syria today.

While how war is waged has dramatically changed over the past 50 years, one of the oldest and most brutal weapons of war, rape and other forms of sexual violence continues to be employed in conflict. IHL specifically prohibits rape and other forms of sexual violence both in international and internal armed conflicts. Following its use during the Arab Spring, reports from Syria, including the Report of the independent international commission of inquiry on the Syrian Arab Republic confirm the widespread use of sexual violence. However, incidents of sexual violence often go under-reported by victims because of the social stigma and a culture of silence in relation to rape and other forms of sexual violence which still persist in many societies.

Preventing sexual violence in armed conflict was a key topic during the G8 Foreign Ministers’ Meeting earlier in April 2013. UK Foreign Secretary William Hague, who launched an initiative on Preventing Sexual Violence in Conflict in May 2012, said: “Our goal must be a world in which it is inconceivable, that thousands of women, children and men can be raped in the course of a conflict because international framework of deterrence and accountability makes it impossible”.

Notwithstanding the Foreign Secretary’s view, IHL remains clear about the prohibition on rape and other forms of sexual violence in international and internal armed conflicts. Indeed, for the past few decades nothing has changed in terms of the core rules of IHL. These rules applied during conflicts in the Former Yugoslavia, Rwanda and the DRC, all marked by exceptionally high levels of sexual violence. The only thing that has changed is a curious shift in political agendas, which has once again refreshed the long-running debate about the need to eradicate the use of sexual violence as a weapon of war, and not the international legal framework surrounding armed conflict.

Nonetheless, more than 60 years since the four Geneva Conventions were created, 15 years since the first successful prosecution by an international criminal tribunal of rape and a few UN Security Council Resolutions later, sexual violence in armed conflicts, including in Syria, continues to occur.

Does this mean that IHL is out of date and unfit to protect the victims of modern armed conflict? I do not think so. The rules of IHL are simple and clear, they prohibit the killing of civilians, torture as well as outrages upon personal dignity and rape. However, these violations continue as many of the perpetrators think they will go unpunished. This is despite the two decades of major developments in the field of international criminal law, which resulted in successful prosecution of perpetrators of war crimes, crimes against humanity and genocide at international level. During that time, rape and other forms of sexual violence were also successfully prosecuted by international criminal tribunals.

What is the way forward? The challenge lies in implementing and enforcing these rules by all parties involved in armed conflict. In the context of modern, asymmetrical warfare engaging in a dialogue with States as well as non-state participants seems the best way forward. But how and where does one begin to engage with these active participants in modern armed conflict, especially with non-state actors? And, more crucially, how does one convince them to obey the rules of IHL?

It is complex question and, to an extent, a political hot potato which requires resources, specialist staff, commitment and time. Lack of political will to comply with the principles of IHL is not an uncommon challenge. Furthermore, the practical difficulties involved in such a project should not be underestimated. After all, guerrilla fighters or other armed groups do not have offices in New York or Geneva and may not be easily convinced to engage in dialogue about the respect for IHL.

More than 60 years ago, the renowned international legal scholar Sir Hersch Lauterpacht, noted: “If international law is at the vanishing point of law, the law of war is at the vanishing point of international law”. Looking at the situation in Syria today, Lauterpacht’s observation might still appear valid. However, it is difficult to picture what modern warfare would look like without IHL – presumably even more gruesome, violent and destructive than it currently is.

Instead of demeaning the value of IHL, perhaps it is more important to focus the discussion on how to improve its enforcement in the 21st century. More effort and willpower is certainly needed to nurture respect for IHL amongst all parties to modern armed conflict. IHL is far from being outdated as some people may suggest.

Olga Jurasz
Lecturer in Law
School of Law, The Open University

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