Spring 2011
Welcome
Birmingham City University’s School of Law has specialised in the law of the United States for over a decade, and the launch of our Centre for American Legal Studies in 2010 represented an important step forward in formalising our commitment to being a national leader in this field. We are very proud of the excellent opportunities we can provide to our law students as a result of our association with many exceptional law offices, projects and organisations across the United States, and the commitment and expertise of our Academic staff.
This first edition of the CALS Bulletin truly reflects the positive impact of all of those relationships and I would like to thank everyone for their contributions to this edition and to the Centre’s various programmes.
I look forward to welcoming everyone to our School of Law and the Centre for American Legal Studies in the future.
Professor John Fairhurst
Head of Birmingham City University School of Law
Contents
Introduction to the Centre for American Legal Studies / 2Members & Student Editors / 3
Arizona Capital Defence Manual Project / 4
Cases of Innocence and “Manifest Injustice” in Arizona and Beyond / 6
The Hermeneutics of the Eighth Amendment’s Cruel and Unusual Punishments Clause / 7
Oil on Troubled Waters: BP and the Polluter Pays Doctrine / 8
Student Intern Experiences / 9
The American Bar Associations Commitment to a Nationwide Moratorium on Executions / 19
Contact Us / 21
The Centre for American Legal Studies
Welcome to the first edition of the Centre for American Legal Studies (CALS) American Legal Practice. CALS is the third of our Faculty’s research centres and joins the Centre for Applied Criminology and the Centre for Research in Education.
The founding staff members of CALS are Professor Julian Killingley (Director), Dr Jon Yorke (Associate-Director), Miss Sarah Cooper (Associate-Director), Professor John Fairhurst, Dr Haydn Davies, and Dr Anne Richardson Oakes. Their American research interests span criminal procedure, the death penalty, environmental protection, desegregation, expert witnesses, judicial standards, right to life and medical law. CALS brings together staff and research students interested in American law and practice who have presented and spoken in conferences internationally. It also administers the American Legal Practice internship programme on the LL.B. and the American Human Rights Placement on the LL.M. degrees. Finally CALS welcomes students for MPhil/PhD degrees whose research topics are located in areas linked to American law and practice.
In 2011 we will open up an application procedure for future appointments of distinguished American attorneys and jurists as Visiting Professors. We have organised a programme of outstanding speakers starting with the visit of Ms Denise LeBoeuf, the Director of the John Adams Project at the American Civil Liberties Union in New York. She discussed the ethical and legal problems of representing those Guantanamo Bay detainees who are to be tried by Presidential Military Commissions rather than by the federal courts of the United States. In November 2010 Professor Maurie Levin from the University of Texas
Law School at Austin delivered a lecture discussing the legacy of lynching in Texas and strategies developed for moving capital trials to less racist counties.
This year we begin an association with Robert Smith of the Charles Hamilton Houston Institute at Harvard Law School. This aims to provide a manual for the use of practitioners defending capital crimes in Arizona. I describe this project in some detail in this issue of the newsletter. We are also developing a computer expert system to assist practitioners to decide whether or not restrictions apply to their clients’ rights to seek federal habeas corpus relief. The project will run for a number of years and will provide staff and students with the opportunity to work with practitioners in the UK and the US, to do rigorous research, draft motions and briefs and devise a manual that can be used effectively by practitioners with little experience of capital penalty litigation.
Finally, we welcome our student editors: Sarah Deakin, Jayantha Ramasubramanyam, Sheila Simbi, and FaizanWarraich. We are grateful to them for their work and enthusiasm.
Julian Killingley
Professor of American Law
Director, Centre for American Legal Studies
Members
Professor Julian Killingley
Professor of American Law
Director, CALS
Areas of Interest:
US Constitutional Law
Capital Judicial System
Dr. Jon YorkeReader in Law
Associate-Director, CALS
Areas of Interest:
US Capital Judicial System
US Medical Law
Ms. Sarah CooperSenior Lecturer in Law
Adjunct Professor, Arizona Justice Project
Associate-Director, CALS
Areas of Interest:
US Innocence Project
Dr. Haydn Davies
Senior Academic in Law
Director of Research
CALS Member
Areas of Interest:
Comparative aspects of US &
UK Environmental Law
Dr. Anne Richardson Oakes
Senior Lecturer in Law
CALS Member
Areas of Interest:
Equal Protection and Judicial Ethics
Sanjeev Gill
Administrator, American Legal Practice
Student Editors
Sarah Deakin
LLB, Year 3
Intern: Arizona
Jayantha Ramasubramanyam
LLM International Human Rights
Intern: Washington, DC
Sheila Simbi
LLB, Year 3
Intern: Idaho
FaizanWarraich
LLB, Year 3
Intern: Texas
Arizona Capital Defence Manual Project
Julian Killingley
Many states within the United States retain the death penalty. Unhappily, many of those same states are reluctant to provide proper funding for the defence of suspects charged with capital crimes. The state of Arizona is one such state. Its problems stem from a hard-line approach to prosecutions and a strong desire to run the criminal justice system as cheaply as possible. For many years Harris County in Texas – the county that includes Houston – was known as the death penalty capital of the U.S. However, many now believe that crown has passed to Maricopa County in Arizona – the county that covers America’s fifth largest city, Phoenix. Arizona’s approach to criminal justice is to do it as cheaply as possible.
The best known exponent of those values is the Maricopa County sheriff, Joe Arpaio. Sheriff Arpaio exults in the claim that he is “America’s toughest sheriff” and his many wheezes and publicity stunts include making prisoners wear pink clothing, detaining them in a tent city in the desert and feeding them for a dollar a day. The District Attorney has a wide discretion whether to decide to seek the death penalty in homicide cases. The Maricopa County DA, Andrew Thomas, seems to have chosen to pursue the death penalty far more frequently than other prosecutors – so much so that he has done so in nearly half of all first degree murder cases.
The practice in Arizona is that the defence in most capital cases is contracted out to private practitioners rather than being handled by a full-time Public Defender Office. This has led to a highly variable standard of representation at trial and to many convictions or death sentences being overturned on account of ineffective assistance of counsel. The defence of clients charged with capital crimes is a specialist practice. Some commentators have even suggested that capital charges attract a kind of “super due process” that goes beyond ordinary due process. A number of US Supreme Court decisions, starting with Strickland v Washington, have progressively raised the standard of competence required to satisfy the Sixth Amendment’s promise of effective representation by counsel. The result has been that many defendants have languished on Death Row for years with some, like Johnny Paul Penry, having as many as four re-sentencing’s in an attempt to satisfy American constitutional requirements.
A number of capital penalty jurisdictions have responded to this by developing capital defence manuals. Most are accessible only by invitation to prevent prosecutors anticipating defence strategies. There is one manual, the Ninth Circuit Capital Punishment Handbook, that is still publicly accessible (see to download a copy) but although this covers Arizona it has not been updated since 10th March 2006. The Ninth Circuit Handbook is of little practical use to trial lawyers as it is basically just a restatement of relevant State and federal law and does not contain detailed procedural motions that practitioners could use off the shelf.
Although the Ninth Circuit Handbook was a step in the right direction, the reality is that the only way a good manual is likely to be available is if one can be prepared and maintained by volunteer effort – the costs of a commercial publisher doing so would be so high that Arizona attorneys would be unable to afford it.
Our Law School works closely with the London-based charity Amicus. In the past our staff and students have collaborated with Amicus lawyers to make legal submissions (called amicus curiae briefs) to the US Supreme Court in a number of important capital cases. Students have found the challenge of working on important constitutional cases against tight deadlines exciting. We have incorporated this brief writing activity into both our LL.B. and LL.M. programmes – but that has led to occasional difficulties. There is no guaranteed supply of suitable cases we can work upon – they arise randomly and unexpectedly. Amicus has the same problem – it has trained lots of volunteers in American law and research but has often found little for them to do.
Eighteen months ago I began to think that we could use the talents of our students and Amicus volunteers to provide new capital defence manuals for use in America. Eventually we made contact with Robert Smith, a capital defence attorney working in the Charles Hamilton Houston Institute for Race and Justice at Harvard Law School. (see
Robert had had a similar idea and he had begun work on such manuals but the Institute did not itself have the necessary resources and he had had difficulty finding American volunteers to do the necessary work.
We have agreed that our Law School and Amicus will work with the Charles Hamilton Houston Institute to produce a new manual for use by Arizona capital defence lawyers. Initially this will mean adapting procedural motions prepared in other jurisdictions for use in Arizona. These motions are part formal request for a judge to rule on a legal issue but also contain detailed supporting legal argument. We are presently in the process of dividing up and prioritising the work required for this but we will begin writing motions this academic year. Students doing the US Supreme Court Decision Making module on the LLB or the Amicus Briefs module on the LLM will work directly on the manual. Students who have done, or who are preparing to do, the American Legal Practice module will also have the chance to volunteer their services and hone their research and writing skills by working on this project. Robert Smith estimates that it takes 5 hours work to adapt a single motion for use in Arizona – and we have access to a bank of more than 600 motions for use in capital cases! Eventually we hope to provide a specialist Arizona Capital Defence Manual to help guide lawyers at every stage of the defence of their capital clients.
This project has a number of virtues. It is what some call an “elephant task”. How do you eat an elephant? The answer is that you eat a small portion every day until the whole is consumed. The writing of the manual is a huge task and can only be done by dividing it into discrete portions and tackling these one at a time. Our manual will be modelled on an existing manual written for capital defence attorneys in California – that manual will give us the necessary structure but only a small portion of the required law because Californian state law differs from Arizona law. We hope to divide up this task into smaller tasks that can be as little or as large as people can afford the time to do. We hope that many of you will use this as an opportunity to try out your research and writing skills by participating in the project. Once you have successfully completed our online Moodle module “American Legal Research”, you can apply to me for one or more research and writing tasks.
We hope to have the whole manual completed within three years – but thereafter the task of maintaining its currency will continue until Arizona repeals its capital statutes.
Cases of Innocence and “Manifest Injustice” in Arizona and Beyond
Sarah Cooper
Deep in the basement of the law library at Arizona State University in Tempe, Arizona sits the Arizona Justice Project. For twelve years, with the cooperation of faculty, administration and students at both of Arizona’s State law schools the Justice Project has worked to examine claims of innocence and manifest injustice made by any Arizona inmates. Currently, two full time contract attorneys, one part time attorney case intake co-ordinator and one part time administrative assistant orchestrate around fifty active cases. The Project relies on the generosity, time and schedules of hundreds of volunteers, including attorneys, investigators, experts and students. It also relies on their and others’ monetary donations to fund its existence. Still, despite all these restrictions the Project has reviewed over 3500 requests for assistance from inmates.In June, 2010 I was appointed as a Visiting Fellow at the Arizona Justice Project and given the chance to lead the review of one of their most compelling innocence cases – the case of Bill Macumber.
In 1976 Bill Macumber was convicted of killing a couple in Arizona in 1962. According to the evidence, he had confessed to killing the couple, his partial palm print was present on the victims’ car and only his gun could have fired the fatal bullets. Yet, the Justice Project’s review has revealed that Bill Macumber’s trial was based entirely on the statements of an individual who had the motive and opportunity to lie -- and gravely unreliable fingerprint and ballistics evidence. Furthermore, the jury that tried Bill Macumber never heard about a psychotic, convicted killer – who had confessed to killing the couple in five, detailed confessions to six different people, and which was corroborated by an eye witness to the killings. Despite these overwhelming indications of innocence, Bill Macumber, now aged 75, has been incarcerated for over 35 years.
Sarah Cooper with the Arizona Justice Project Team
The unfortunate truth is that Bill Macumber is not alone. To date there have been 259 post-conviction DNA exonerations in the United States. The first DNA exoneration took place in 1989 and since 2000 the “exoneration movement” has accelerated with a total of 193 exonerations. Of the 265 people exonerated 17 served time on death row and the average length of time served by exonerees is 13 years. But what about people, like Bill Macumber, who have no DNA evidence?
On that note, the fortunate truth is that the Arizona Justice Project is not alone. The Arizona Justice Project is one of the founding members of the National Innocence Network which was born in the late nineties. That Network is composed of Projects all across the United States – of which there are now more than 50. These projects may all have different teams, procedures and specialities, but all of them are wholeheartedly dedicated to exonerating wrongfully convicted persons through DNA exoneration programmes and criminal justice reform.
The Centre for American Legal Studies at Birmingham City University is privileged to be able to contribute to the Network’s efforts by providing Academic support and student volunteers. The causes and implications of wrongful convictions are not unique to the United States – they are global – and therefore there should be a global effort to help solve them.
The Hermeneutics of the Eighth Amendment’s Cruel and Unusual Punishments Clause
Jon Yorke
Originalist jurists and scholars focusing upon the 1789-1791 drafting of the Eighth Amendment of the United States Constitution, which prohibits the infliction of “cruel and unusual punishments,” normally emphasise the fact that the text has its etymological roots sprouting from Article 10 of the English Bill of Rights of 1688. During this time the death penalty was regularly imposed in England and was not generally considered to violate the prohibition against cruel and unusual punishments. Justice Scalia in Harmelin v. Michigan (1991) observed that, “the entire text of the Eighth Amendment” is derived from this historical construct, and so one of the ways in which the conservative wing of the United States Supreme Court is able to legitimise the death penalty in our present times is through a selected reading of federalism, originalism, and strict constructionism. In effect, the argument goes - the death penalty cannot per se violate the Eighth Amendment because the drafters thought that the punishment was permissible. However, the drafting debates in the 1791 Annals of Congress record Samuel Livermore of New Hampshire noting the vicissitudes of American society and the implementation of punishment and he provided an alternative perspective when he stated: