TRIALS BY FIRE
Law clinics put students to the test
as real-world advocates
By Hudson Sangree
In a South Boston hearing room, Northeastern law student Pam Griffith and
her client, George Hughes, sit side by side at the counsel's table, faced
down by six grim-faced members of the Massachusetts Parole Board.
Twenty-two years ago, Hughes viciously murdered a prostitute in the
Combat Zone, Boston's red-light district. Now, he is up for parole, and
Griffith, a student in the law school's Prisoners' Rights Clinic, is his
sole advocate.
With just a trace of nervousness in her voice, the 26-year-old Griffith
delivers the first opening statement of her legal career. Hughes is a model
inmate, she says. During more than two decades in prison, he has been disciplined
only once. Moreover, she argues, he is rehabilitated. Now age 57 and white-haired,
Hughes has undergone extensive counseling for his anger, stopped using
drugs and alcohol, and married a woman he met while on a work-release program.
"This is, in fact, a man who is ready for parole," Griffith
declares.
She makes a strong case, but Hughes's release is still a long shot.
Serving a fifteen-years-to-life sentence for second-degree murder, he has
already been up for parole three times during the last decade. Each time,
he was sent back to prison, with several factors weighing in against him.
First, Hughes's crime was particularly heinous. His victim, Beverly
Trumble, was a 26-year-old telephone operator who moonlighted as a prostitute.
Hughes picked her up in a bar and took her to a seedy hotel room. Things
turned bad when he accused her of stealing some of his cash from the bureau
top. She denied it. They argued. And then he stabbed her again and again
with a kitchen knife, inflicting thirty-five wounds in total.
Compounding matters, Hughes has consistently maintained he can't remember
the murder. He says he lapsed into an alcoholic blackout that day after
downing dozens of drinks. "I said there's money missing. She said
she didn't take anything. That's the last memory I had in that room until
the police were there," he testifies. This has been a point of concern
for parole-board members, who worry Hughes cannot take responsibility for
a murder he does not remember.
A slim chance at freedom
Not only must Griffith deal with the viciousness of Hughes's crime,
the commonwealth's low parole rate for "lifers" makes winning
the convict's release an uphill battle. In 1999, fewer than one in four
inmates like Hughes were let go at their parole review hearings. (The rate
was even lower throughout much of the last decade, bottoming out at 10
percent.) That's because two successive Republican governors have packed
the board with law-enforcement types. Of the board members at Hughes's
hearing, three are former prosecutors, one is a probation officer, and
another is a state police investigator.
One of two women on the board, Mary Ellen Doyle, is a victims'-rights
advocate whose parents and brother were murdered during a home-invasion
robbery. During the board's questioning, she seems worried that Hughes
may once again become violent if he is released.
"On some level, did you hate women?" Doyle asks.
Hughes denies this, but admits he felt some anger toward his mother
for failing to protect him as a child from his abusive father.
"Well, there was certainly a lot of hatred on that day, and we
need to know where it came from," Doyle says.
Hughes answers that the murder was "just an outpouring of all the
anger that I had carried around all those years, and the drinking, and
not being able to make rational decisions about my behavior. I believe
that everything just fell apart."
But, referring to his memory loss, Doyle shoots back, "How do you
know you haven't done this before and you just weren't caught?"
The questioning goes on like this for more than an hour. Hughes remains
calm and articulate, insisting he is no longer the enraged, out-of-control
man who killed Beverly Trumble.
After the board is finished questioning Hughes, Griffith conducts the
examination of her expert witness, a psychologist who testifies that Hughes
is not faking his amnesia and is fit for release. Then Hughes's wife and
father-in-law address the parole-board members, beseeching them to send
Hughes home.
Finally, Griffith gives her summation. "What should matter most
today is not Mr. Hughes's inability to remember the details of the crime,"
she says. "What should matter most is that Mr. Hughes admits his responsibility
for killing
Ms. Trumble and is genuinely remorseful about the murder. What should
matter is that he has worked hard at counseling and [Alcoholics Anonymous]
to address the causal factors [of his crime]. What should matter is that
because of this rehabilitation, Mr. Hughes is not a risk to public safety.
"George Hughes is ready for parole," she concludes. "When
you thoughtfully consider all the evidence you've heard today, you can
be confident that letting Mr. Hughes out into the community is a decision
you will not regret."
In the final analysis, most of the job of convincing the board is up
to Hughes himself. But Griffith has put more than 150 hours into building
her case and preparing her client to testify.
"It's real"
During the last weeks before the hearing, Griffith spent day after day
at the prison working with Hughes. Her other law school courses had to
take a backseat. But like other clinic students, she says the effort was
well worth it: "This is my first experience with criminal law, and
it's a heck of a way to get into it. You learn so much by having a client
and handling a case. It's such a different way to learn than sitting in
a classroom. It's real."
Besides Prisoners' Rights, the Northeastern law school operates five
other clinics. Students in the Domestic Violence Clinic represent battered
women in Dorchester District Court. In the Poverty Law and Practice Clinic,
they go to bat in government hearings for people denied welfare benefits.
The Tobacco Control Clinic allows students to advocate state and local
laws to curb cigarette marketing and sales to teens. In the Certiorari/Criminal
Appeals Clinic, students draft complex petitions to the U.S. Supreme Court
on behalf of death-row inmates. And in the Criminal Advocacy Clinic, teams
of students represent indigent defendants in routine criminal matters before
Roxbury District Court.
Clinics give students direct experience as counselors and advocates,
offering an experience distinct from co-op. "You are your client's
advocate," says Heather Shanahan, L'00, a New Hampshire public defender
and former student in the Prisoners' Rights Clinic. "Whereas a lot
of times on co-op you would do discrete things, like a bail argument, but
you never actually followed things through from beginning to end."
Professor Wallace Holohan, director of the Prisoners' Rights Clinic,
says clients benefit from the students' intense focus on and preparation
of their case. "There are very few lawyers who can do the hearings
as well as a student," he says. "Twenty years ago, I wasn't convinced
you could teach these kinds of sophisticated advocacy skills in ten weeks,
but the students just continue to amaze me."
Lingering controversy
Legal clinics spread through the nation's law schools in the 1970s;
their value is now widely accepted. But for many years, they were frowned
upon by legal academics. Even today, traces of resentment linger, says
NU law professor Michael Meltsner, who pioneered clinical education at
Columbia University before joining Northeastern's law school as dean in
1979.
"Clinics were and still are controversial," Meltsner says,
explaining that they reject traditional approaches to legal education by
placing more emphasis on handling real cases and less on studying appellate
court decisions. "Some academics have been threatened by this approach.
But because there are now more than a thousand clinicians teaching in U.S.
law schools, the real question is not whether to have clinical legal education,
but how best to do it."
Law clinics were never controversial at NU "from an ideological
standpoint," but the need for them was still questioned, says professor
Daniel Givelber, director of the Certiorari/Criminal Appeals Clinic and
a former law school dean. "The difficulty at Northeastern was that
we were a co-op school," Givelber says. "Initially, it was thought
you didn't need [clinics]; then it became clear that co-op didn't give
the broad range of experience of working on one case."
Northeastern's first clinic was Criminal Advocacy, started by professor
John Flym in 1974. Next came the Prisoners' Rights Clinic, founded by students
in 1978. Ken King, L'80, now a clinical instructor at Boston's Suffolk
Law School, says he and several other students got the idea after taking
a class in prisoners' rights. They wrote a grant proposal, got funding,
and recruited Holohan, who was then working as an inmate advocate at Massachusetts
Correctional Legal Services.
The clinic was founded because prisoners in those days had few legal
options, King says. "At that time, we were working primarily in Walpole
[a maximum security prison]. It was extremely overcrowded and extremely
violent. There were seven or eight murders in one year in a population
of 700. That's a phenomenal amount of violence."
What's more, King says, prison conditions were "harsh and oppressive,
and there was no process in how they disciplined people. You would see
men lose hundreds of days of good time for petty offenses, like taking
an extra food item or showing disrespect to a guard."
King and his colleagues began representing the prisoners under these
conditions. "No one else was doing it [at Walpole]. There was a very
glaring need-and an opportunity."
Inside the prison walls
Students in the Prisoners' Rights Clinic continue to represent inmates
in disciplinary hearings, which usually involve prisoners charged with
assaulting guards or other violent acts. To meet with their clients at
MCICedar Junction (formerly known as MCIWalpole), the students
must pass through the "trap," a small tunnel located in the prison
wall, with two steel doors that slam shut on either end.
Twenty years later, King says he still remembers being locked inside
the trap. "When that door shuts, there is just a real feeling of finality,"
he says. "It's a real metallic thunk. You know it's real."
The students may be subjected to a pat-down search. Anyone with contraband
or metal on their person won't be let in. Subject to the whim of the guards,
this can include such items as computer disks or underwire bras. "Going
into the prison was very intimidating, not because of the inmates but because
of the correctional officers," says Shanahan. "It's a feeling
of sheer powerlessness. You're at the mercy of these people."
Although the guards can be difficult and arbitrary, students say the
inmates are usually respectful and cordial toward legal counsel, both lawyers
and students. Students preparing for disciplinary hearings in the prison
segregation unit meet with their clients in a spare prison cell, outfitted
with orange plastic chairs bolted to the floor. The prisoners are chained
and shackled, and a guard sits just outside the cell door.
In contrast to parole hearings, the disciplinary hearings take place
inside the prison and can be highly adversarial. Students, who are not
accompanied by instructors, often get their first taste of courtroom-style
warfare in such a setting, as they try to defend their clients. Many students
are in their mid-twenties and have no prior legal or advocacy experience.
For some, it can be a trial by fire.
Getting ready for her first hearing, 24-year-old student Kathy Hsu says,
"They told me this will be the hardest adversarial hearing I will
ever have to work on. If I can do this, I can do anything." But she
says her instructors, Holohan and civil rights attorney Patricia Garin,
L'84, had prepared her so well she felt confident. "We're not set
up for failure."
Even so, students working on disciplinary hearings rarely get their
clients acquitted of the charges. The most they can do, says King, is mitigate
their client's punishment, create a record for appeal, and give the proceeding
the appearance of due process. "When there's someone from the outside
watching, it changes the behavior [of corrections officials]," he
says. "They might dismiss some of the more outrageous charges."
Compassion for the convicted
The parole hearings, though not as confrontational, can be equally stressful
for student advocates. For her first hearing, Shanahan says she waited
in the parole-board lobby through three hours of delays until the hearing
was finally cancelled. But it is hardest on the inmates, she says. "As
much as you're feeling, you're going home at the end of the day. In fifteen
years, it's the first time they've even gotten close to the outside."
She says her client "lost it" when his hearing was cancelled.
"He just had a real emotional breakdown. He just started sobbing."
Shanahan says she pleaded with correctional officers to let her client
see his family members, who had driven from New Jersey to be there. Finally,
the inmate was allowed to wave to them through a window.
Some might wonder how students could feel compassion for convicted murderers.
But most say it is just part of the process. "You develop a relationship
with your client, and come to realize and accept what was going on,"
says Shanahan. "You'd think hearing the details of the murder over
and over again would give you nightmares, but you learn to click it off.
It's almost like your allegiance falls with your client, so you don't think
about it in any other way."
At the hearing, however, the presence of the victim's family can be
sobering. At one of her parole hearings, Shanahan says, several of the
victim's family members "got up, and screamed and cried. It was horrible.
I ran into them in the hallway, and they looked at me like I was the devil."
Still, she says, her feelings remained with the prisoner: "They
think of your client as an animal. You think of your client as a human
being who deserves something more than that. Your connection and desire
to do well for your client increase with talking to them, learning that
they are remorseful and they've done what they could to reform themselves."
Keeping inmates who are rehabilitated and no longer a safety threat
in prison is pointless, Shanahan adds. "Keeping someone dangerous
off the streets is a different proposition from keeping someone in prison
for revenge. I don't think it serves any useful purpose to take someone
who's reformed and keep them in prison because the victim's family would
be upset if they were paroled."
Focus on the big picture
Clinic students are encouraged to think about the ethical issues that
arise during their experience. In the Poverty Law and Practice Clinic,
for example, they examine how society treats its poorest members. In the
Certiorari/Criminal Appeals Clinic, they must come to terms with capital
punishment. And in Prisoners' Rights, they have to grapple with the way
the legal system deals with convicted felons.
Asked why she would want to help murderers go free, Simone Berman-Rossi,
a student in the Prisoners' Rights Clinic, says she confronted this question
while representing a parole-hearing client who had strangled his wife to
death in front of the couple's two young children. The third-year law student,
who also does domestic-violence work, says she had some initial qualms
about representing such an individual. But ultimately, she says, it came
down to ensuring a fair legal process.
"Society doesn't like people who commit horrendous crimes,"
Berman-Rossi says. "But it doesn't mean they don't deserve representation.
I think if you judge our system on how we treat people on the lowest rung
of the totem pole, it is a reflection of where we're at in society in terms
of equality of rights and treatment. If we just cared about the people
who are nice and good, and whom we liked, what does that say about all
the categories of people whom we disliked? Should they just be set aside?
I don't think so."
Holohan adds that representing inmates is a valuable lesson for lawyers
in training. "In my opinion, one of the reasons students should be
doing this work is to see what's missing in society today, particularly
in the criminal justice system," he says. "We don't have a sense
or an ability of forgiveness. Not that long ago, at least up to the mid-eighties,
people did their time, they paid their debt to society, and they were able
to move on. Now, in large part due to our political leaders who spew this
kind of hatred and vindictiveness, people believe that punishment goes
on forever."
This is particularly true, he says, "if you come from the wrong
side of the tracks or the wrong class, or particularly if you have a skin
tone that's a little different. Those crimes aren't forgotten or forgiven.
But the same is not true if you come from the affluent white middle class
or upper class.
"I think students need to see there's that dichotomy," he
says. "I don't think there's a place you're going to see it more than
before the parole board or in the correctional system."
That's why the Prisoners' Rights Clinic is needed, even if it represents
an outcast clientele, Holohan argues. "One of the things lawyers ought
to be is champions of unpopular beliefs," he says. "It's easy
to ride the tide of what's popular, whether it's juvenile law during the
late seventies or early eighties, or now domestic violence.
"It's real easy for the so-called liberals to just jump into what's
popular today," he says. "What's more difficult to do is represent
people and causes that are very unpopular, and that's prisoners' rights.
Always has been. Probably always will be."
Death-row appeals
As the Prisoners' Rights Clinic trains students in oral advocacy, other
clinics emphasize the written word. In the Certiorari/Criminal Appeals
Clinic, director Givelber receives cases from death-penalty projects throughout
the country.
The case files can include up to twenty volumes of trial transcripts
and legal briefs, sometimes as many as 2,500 pages. From these files, students
must identify legal issues for appeal to the U.S. Supreme Court, which
has discretionary power to review a death-row inmate's conviction.
Next, students working in teams of three draft the certiorari petitions,
twenty-five- to thirty-page documents that claim a state's highest court
misapplied federal law or the U.S. Constitution, and ask the Supreme Court
to grant review. Following a set of complex rules, the students must make
sure they've complied with all the brief's specialized requirements.
"If you've never done one before, it can seem overwhelming,"
Givelber says. "Not only do the students have to write this thirty-page
brief, they have to dot all the i's and cross all the t's in a very technical
document." The typical petition, he says, goes through four or five
drafts over a period of two to three months. "There's a real premium
on not filing it until it makes as credible an argument as [the students]
can make, considering what facts they have."
Since the Certiorari/Criminal Appeals Clinic started in 1994, "the
student experience has never resulted in cert being granted," Givelber
says. This isn't unusual, given that the Supreme Court grants review in
only a tiny percentage of indigent death-penalty appeals, about ten in
every four thousand, according to Givelber.
But the experience is still valuable, he says. "The students can
frequently identify and clarify issues that subsequent lawyers can use
in seeking relief." In addition, filing the certiorari petition stays
the inmate's execution until the Supreme Court acts on the case, a time
during which the prisoner's local attorney can begin the process of filing
later appeals, including federal habeas corpus petitions.
In the end, instructors say, the real value of clinics is they teach
students how to do cases right, before they graduate.
"You can leave that to practice if you want," says professor
James Rowan, director of the Poverty Law and Practice Clinic and supervisor
of all the law school's clinics. "But bad habits can grow up, and
they die hard. Unethical practices. Shoddy work. Inexact thinking. Ignorance
of a client's real situation. There are lots of ways to screw up being
a lawyer."
And classroom education isn't enough, Rowan says. "The practice
of law is after all a trade. It requires certain skills.
It requires some experience." You can teach students these skills
in law school, he says. "Otherwise, you're leaving it to chance."
Hudson Sangree, L'00, wrote about the Roxbury Preparatory Charter
School in the May 2000 issue.