Dear Friends and Alumni of the Remington Center,
Welcome to the Fall 2014 edition of the FJRC Newsletter. Below you will find, for a second year, “vignettes” of student lives at FJRC by the summer clinical students; you will also find a story from a student who argued a case in front of the Seventh Circuit last summer, and a story of a law student meeting a client who, on paper, repulsed the law student. Also, there is a piece describing the LAIP of today – how it has and has not changed over the years – and a story of a “typical” LAIP case. Finally, Keith Findley has written a tribute to Byron Lichstein, who is leaving the Remington Center after more than ten years of unparalleled service to the Law School, the Remington Center, and to all the students who came in contact with him
As many of you know the Remington Center struggles with turnover of its staff. Over the past few years we have lost several clinical professors to retirement and several who have moved on to other endeavors, including two who have taken academic faculty positions. The greatest struggle is with the turnover of the supervising attorneys who are “clinical instructors,” not “clinical professors.” The Remington Center has been fortunate in having, and having had, some incredibly talented clinical instructors. Many of these instructors have come to the Remington Center early in their careers, although a few have also come much later in their legal work life. They bring a fresh perspective and enthusiasm, and serve as wonderful role models for our students.
These clinical instructors in most cases cannot advance in position at the Law School and are only permitted to stay as an instructor for two or three years, despite outstanding performance. This particular fact is hard on the instructors, the students and the Remington Center. Because of the uncertainty of the job market, clinical instructors who have no guarantee of another year of work at the Remington Center will often take a job offer in the middle of the academic year. This leaves students with a lack of continuity and the Remington Center scrambling to fill positions quickly. We have been very fortunate with having been able to find highly qualified applicants when unable to take the time for a full candidate search, but this may not always be the case, especially with the job markets improving for young attorneys.
For the legal profession, this forced exodus has its benefits. These young clinical instructors are highly sought after and have no trouble finding jobs. In just the last two years the clinical instructors who have left have gone on to various Innocence Project offices around the country, to the State and local public defender offices, to district attorney offices, to Legal Action of Wisconsin, to a policy position in a state legislator’s office, and to private practice. They take with them a broad knowledge of criminal law and how the justice system works (or does not work); they know the importance of mentoring; and they are all committed to making the justice system fairer for the poor, the disadvantaged, persons of color, and the overlooked. This knowledge and commitment is spread beyond the Remington Center.
But for the Remington Center there is a loss when a talented young clinical instructor leaves. It is somewhat, but not completely, comforting to know that their leaving means the commitments and mission of the Remington Center are being sown around Wisconsin and the rest of the country.
Carrie Sperling, Interim Director
News and Updates:
Remington Center Updates
Comings and Goings
Sara Brelie will leave LAIP in January. She joined the Remington Center as a clinical instructor in the Spring of 2013, following a clerkship with the Hon. Richard S. Brown, Chief Judge of the Wisconsin Court of Appeals. Sara guided her students with creativity and gentleness while they achieved great successes for their clients. Sara argued State v. Romero-Georgana, a case involving complicated post-conviction procedural questions, in front of the Wisconsin Supreme Court in April of this year and collaborated on several briefs for the Wisconsin Court of Appeals. Sara is moving on to work for the State Public Defender’s Office, Appellate Division.
Byron Lichstein, a clinical associate professor with the Remington Center, will leave at the end of the year, after more than ten years as a supervising attorney for LAIP, CAP (the Criminal Appeals Project), and WIP (Wisconsin Innocence Project). Below you will find Professor Keith Findley’s tribute to Byron and the work he has done while at the Remington Center.
Margaret Maroney left the Wisconsin Innocence Project at the end of September after filling in for several months as a supervising attorney following many years in the State Public Defender’s Office and work as a pro bono immigration law attorney. Margaret’s willingness and ability to fill in for several months on short notice was enormously appreciated by staff and students at the Remington Center.
Steven Wright has taken over for Margaret Maroney as a supervising attorney for the Wisconsin Innocence Project. Steven has an impressive resume that includes Master’s degrees from Duke, Johns Hopkins, and Wisconsin in Environmental Management and Creative Writing. He earned a JD from Washington University in St. Louis in 2006, clerked for the Hon. Lavenski Smith of the Eighth Circuit Court of Appeals, and was a trial attorney for the Department of Justice where he worked for the Voting Section of the Civil Rights Division. He worked as a criminal defense attorney in Madison taking trial and appellate cases as a SPD-appointed attorney from 2012 until joining WIP in October.
Jonathan Scharrer Advises Dane County on Establishment of Community Restorative Court
Jonathan Scharrer, clinical instructor and director of the Restorative Justice Project at the Remington Center, has been involved with the workgroup developing the Dane County Community Restorative Court (CRC). The CRC is a pilot community court created by the Dane County Racial Disparities in the Criminal Justice System Subcommittee. This Court, which is slated to begin operation early in 2015, will handle non-domestic violence related misdemeanors committed by 17 to 25 year olds on the south side of Madison. Referrals will be made to the CRC by law enforcement, the district attorney, and occasionally community members. The goals of the CRC include reduction in the racial disparities in the Dane County criminal justice system, community-driven solutions, reduced recidivism, and reduced burden on the criminal courts. Jonathan’s role has been to educate on restorative justice practices and advise on the policies, procedures, and structure of a workable restorative justice program, as well as providing training to facilitators and community members.
Greg Wiercioch Works to Keep Scott Panetti from Lethal Injection in Texas
Greg Wiercioch, an assistant clinical professor and a supervising attorney with LAIP, rushed to Texas in November when that state set an execution date for Greg’s long-time client Scott Panetti. Greg has represented Mr. Panetti, who was convicted of the murder of his in-laws in Texas in 1992, on his death-penalty appeals since 2003, when Greg worked for Texas Defender Service, a non-profit law firm. Mr. Panetti, who was born and raised in Wisconsin, had been allowed to represent himself at trial despite undisputed evidence that he suffered from schizophrenia. In one of the appeals of the death sentence – and this case has been up and down the federal and Texas court systems too many times to count – Greg argued before the United States Supreme Court in 2007. In that appeal, the Court ruled that a person must have a rational understanding of the reason for his execution, and sent the case back to the Texas federal judge to determine Mr. Panetti’s competency. In mid-October of this year, the State of Texas obtained an Execution Warrant setting Mr. Panetti’s execution for December 3. The State did not, however, notify Greg and he learned of the execution date when he read about it in a Texas newspaper two weeks later. Greg and his co-counsel from Texas Defender Service, along with his death-penalty defense colleagues in Texas, began a multifaceted approach to save Mr. Panetti from a lethal injection. They met with rejection at every stage as they worked their way through the state and federal courts. Despite an outpouring of support from mental health organizations, religious groups, former judges and prosecutors, and politicians, the Texas Board of Pardons and Paroles refused to recommend commutation of sentence to the Governor. Finally, on the morning of December 3, only a few hours before Mr. Panetti’s scheduled execution, the Fifth Circuit agreed to hear argument that Mr. Panetti had a right to funding to hire his own mental health expert and investigator to assist him in presenting evidence that he is not competent to be executed. Greg is now back at LAIP, awaiting a briefing schedule from the Fifth Circuit.
Byron Lichstein Leaving the Remington Center
Anyone who has been around the Remington Center in the past eleven years knows what a loss it is for us that Professor Byron Lichstein is leaving at the end of December for new professional and personal opportunities. Byron has done it all, and meant even more, to the Remington Center, beginning with his days as a student in 2002 and 2003 in LAIP and the Criminal Appeals Project, and then as a clinical faculty member after he graduated in December 2003. In his brief eleven years teaching in the Remington Center he served at various times as Director of the Criminal Appeals Project, Supervising Attorney in LAIP, Co-Director of the Wisconsin Innocence Project, Deputy Director of the Remington Center, and most recently, Interim Director of the Remington Center. While he is moving on, fortunately his imprint on the Center will be with us for much longer.
The breadth of Byron’s work in these various roles says a lot about his flexibility, skills, and leadership. But it hardly tells the whole story. Byron is one of those unique people who has a natural knack for litigation, an unflappable ability to deal with adversity, the courage to do what needs to be done even when it’s unpleasant, and an innate ability to connect with people. And he used those skills to good effect, exonerating wrongly convicted innocent people; winning losing cases on appeal; stepping in to take on additional responsibilities at the Remington Center even though he was already doing far more than anyone else, simply because it was needed; and guiding the Remington Center through challenging times of transition.
Despite his boyish appearance and sometimes irreverence, he is as at home hanging out with cops and judges as with students at the City Bar on State Street. He became a regular speaker training judges at an annual judicial training on evidentiary issues. He staffed the Wisconsin Criminal Justice Study Commission, working with prosecutors, judges, defense lawyers, and police on reforms to improve the reliability of the criminal justice system’s guilt determinations. And he became a trusted associate of the director of law enforcement training at the Department of Justice, charged with writing the DOJ’s policy on eyewitness identification procedures.
But perhaps more than anything, what set Byron apart at the Remington Center was the way he connected with students as a teacher and mentor. His importance to students is probably best captured by his students themselves, in their own words. Here are some samples of what his students have said about him over the past few years:
Through [our] close working relationship, I also learned that Byron is sincerely devoted to achieving justice for those in need of legal services. One particular client last year was found guilty of engaging in inappropriate conduct with a minor via a computer; though many might deem this client’s behavior as “immoral” or “repulsive,” Byron’s beliefs regarding the client never surfaced; he is very adept at looking at issues through the lens of the law and setting his views aside. Byron encouraged and reminded us to look at the liberties and rights provided by the law and search for a legitimate way to obtain justice where those liberties were unjustly or illegally violated. Rather than simply seek remedy in the criminal courts for the client in the inappropriate conduct case mentioned above, Byron and his students actively questioned the constitutionality of the law at issue. His insistence on providing clients with justice, as in this case, motivated us to do the same for our clients and question those practices impinging on others’ rights.
Two of Byron’s students have written about Byron’s generosity and exceptional capacity to take on work when it will help others. They note:
Professor Lichstein—and it is strange to refer to him that way, since he is ‘Byron’ to everyone—is always approachable; he is generous to a fault with his time. We spent hours with him discussing our cases; our discussions addressed legal, ethical, and policy dimensions of criminal justice. Despite his heavy workload in multiple clinical programs, Professor Lichstein’s door was never closed. When we came to him with questions, Professor Lichstein used each of those contacts as an opportunity to encourage us to think more deeply and critically about whatever it was we were asking. Professor Lichstein often responded to questions by asking students “What do you think?” This was not a casual throwaway question. He actually wanted to hear what we thought, and he listened carefully to what we had to say. . . .
Through Professor Lichstein’s guidance and instruction on . . . [a] case [that led to an exoneration], we grew up as lawyers. We learned how to serve a client and advance his case through persistent, thorough, and professional representation. From beginning to end, and even after the client’s exoneration, Professor Lichstein has set an example that both of us aspire to as professionals and as people. The classroom component of our clinical experience was extremely rich and valuable. However, we learned so much by working with Professor Lichstein outside the classroom that the formal curriculum was simply icing on the cake.
So while we wish Byron well in the next chapters of his life, and are excited for the new opportunities that will come his way, it hardly suffices to say we will miss him. He leaves behind some very big shoes. He represented the best of the UW Law School, its tradition of teaching and studying the law in action, and its commitment to the Wisconsin Idea. For all of that, we are immensely grateful.
Legal Assistance to Institutionalized Persons is the longest running Remington Center clinical program. In many ways much remains the same at LAIP as when Frank Remington, and then Walter Dickey, oversaw the program. Students still represent persons in Wisconsin’s prisons who have nowhere else to turn for assistance. Although every year there are a few cases which result in 15 to 20 years taken off a client’s sentence, success also takes many less dramatic forms. Success can be writing a will for a man serving a life sentence, resolving outstanding cases, finding alternatives to commitments for nonpayment of fines and forfeitures, resolving conflicts between what the court ordered at sentencing and the judgment of conviction sent to the prison, or securing sentence credit in a wide range of custody scenarios.
Even for the cases where LAIP cannot provide a desired result for the client, there are often positive results: the client understands the law governing his conviction or sentence, or the client is grateful that someone has listened to, and looked into, his concerns. For many of these clients, this means they can face their incarceration in a better frame of mind and can return to the community with fewer obstacles to reintegration. For students who are just beginning to use their legal abilities, the gratitude from inmates is a powerful learning experience and motivator.
The procedures and methods the students employ to represent the LAIP inmates are somewhat frozen in time as today’s technological advances do not reach inside Wisconsin’s prisons to the inmates. The inmates do not have access to the Internet or email. Students must, therefore, conduct interviews in person or over the telephone; they write letters, rather than email or text; and they must navigate through handwritten documents from their clients to understand the client’s story and distill the information to get to the root issues.
Inmates generally use a paper application when they seek assistance from any of the Remington Center clinics; project assistants and staff may do some intake at the various prisons. The applications are in libraries of every medium and maximum security prisons as part of a “Desk Book” that the Remington Center attorneys put together and keep updated for inmates. LAIP also receives referrals from DOC personnel for issues LAIP is well-suited to resolve, such as sentence credit issues.
The number of annual applications for assistance for LAIP’s services has varied over the past few years between 500 and 700. The applications are screened initially by a supervising attorney; further investigation is performed by project assistants (former LAIP students); and then conflict checks are done for those applications that make it through the screening process. Applications are automatically rejected if the applicant has too little time left to serve to address his issues or if the inmate is seeking to challenge conditions of confinement. On an annual basis, each LAIP student carries an average of ten cases and has clients at four to six different prisons.
A majority of the applications deal with topics that LAIP students have confronted for years: sentence credit, sentence modification, sentence adjustments, and resolution of detainers. These always have factual challenges, and new sentencing laws have added layers of complication. LAIP students are also involved in geriatric and compassionate release requests. Under certain circumstances, the students do take on challenges to the inmate’s conviction with issues such as ineffective assistance of counsel and plea withdrawals. Two newer areas of work for the LAIP students are (1) assisting inmates who have been victims of identity theft, and (2) working with non-citizen inmates who may not have been given proper warnings regarding the effects on their immigration statuses when they pled to various charges.
LAIP continues to receive significant, and greatly appreciated, funding from the Department of Corrections. LAIP’s assistance helps the DOC meet its constitutional obligation to afford access to the courts, and results in inmates who are usually less angry and frustrated. The DOC and taxpayers also receive significant financial benefits from the reduction of sentences. Based on the DOC’s average annual cost of $33,000 for incarcerating an inmate in a Wisconsin prison, LAIP saved DOC approximately $2.2 million dollars during the 2012-2013 academic-year, and just under $1 million during the 2013-2014 academic-year in reductions in time to be served.
In conclusion, Walter Dickey’s words from 1993 still accurately describe LAIP’s goals for the education of law students. He stated that students are not taught “how to do it,” but rather to “explore the interplay of law on the books, law-in-action, the facts of the case, the values of the client, and the social setting, to help clients come to sensible judgments about the goals of representation.” As in 1993, the hope is that LAIP students will come to understand the problems confronted by those who are disadvantaged by such factors as poverty and race. On a more basic level, every LAIP student is still given the opportunity to draft basic legal documents, letters, motions, memoranda, and briefs, and they continue to deal with administrative agencies, attend hearings, and present arguments in court.
Students in LAIP have come and gone for the last 50 years. The program, which has always adjusted to changing times and changes in leadership, has never lost its ability to produce law students who understand how the legal system works and who have a sense of responsibility toward the client, the profession, and the community. Through these students, LAIP continues to serve as “a check on justice systems that sometimes misfire.”
A "Typical" LAIP Case
Below is a story about a “typical” LAIP case, although no case is really typical because the factual and legal paths of each case have their own individual twists and turns. What is typical is that the LAIP student came to the case with an open mind, went beyond the inmate’s application letter, undertook a creative and thorough factual and legal investigation, used professional judgment while seeking the best possible outcome for the client, and had supportive supervision throughout the process. What is also typical is that this is a case where the client had legitimate claims that would very likely never have been be heard or even raised if not for the LAIP students and staff.
When Mr. T was 15 years old, he and a couple of friends committed a series of thefts, burglaries and criminal damage in rural Wisconsin. No one was injured as a result of these crimes and Mr. T had no prior record. The State offered a plea deal that included a recommendation for probation, but required Mr. T to plead guilty to 13 felonies. The court placed Mr. T on probation for 15 years, but it also imposed and stayed a prison sentence of 24 years. For 11 years, Mr. T did everything right. After a court-ordered year in jail, he completed over a thousand hours of community service, had no positive drug test, and kept mostly current on his court-imposed financial obligations (including roughly $70,000 in restitution). He also completed high school, maintained fairly steady employment, and enrolled in his local technical college.
Then in 2009, Mr. T was convicted by a jury of second degree sexual assault of a child. The court sentenced him to 5 years of confinement followed by 5 years of extended supervision. Because of this conviction, the Department of Corrections (DOC) sought to revoke his probation for the 1998 property crimes. Mr. T took the word of his agent and attorney when he was told he faced being revoked for 10 years. According to records eventually obtained by LAIP, Mr. T’s probation agent, DOC supervisors, his new attorney, the assistant district attorney, and the court failed to properly read the 1998 judgments of convictions. Thus, the judge in the 2009 case imposed a new 10-year sentence ordered to run concurrently with what the judge believed would be a 10-year revocation sentence. Mr. T was advised by his attorney and others to waive his final revocation hearing based on the belief that challenging revocation would be pointless in light of his new conviction.
When Mr. T arrived at prison, the records staff properly computed his revocation sentence to be 24 years; his mandatory release date was 16 years away. After appealing his 2009 conviction. Mr. T sought the assistance of LAIP. In his application and initial interview he expressed an interest in sentence modification and wanted to challenge the original 1998 convictions based on various Miranda violations.
Under the guidance of Supervising Attorney Jeremy Newman, law student Taylor Kraus began researching the issues raised by Mr. T. She made document requests of various agencies and then poured over the transcripts of the 2009 court’s sentencing comments, the 1998 sentencing hearing minutes (the transcripts had been destroyed 10 years after sentencing), and the DOC’s preliminary revocation hearing decision from 2009. Taylor discovered that the 2009 sentencing court unquestionably believed that Mr. T faced a 10-year prison sentence based on the 1998 convictions. In addition, she found that the DOC at the preliminary revocation hearing had also erroneously described Mr. T’s 1998 sentence as being 10 years imposed and stayed. Taylor and Jeremy had several conversations with Mr. T’s 2009 trial attorney who eventually admitted that he advised Mr. T not to challenge his revocation on the assumption that Mr. T was only facing 10 years on the revocation. In fact, Mr. T’s 2009 attorney suggested that Taylor examine the original sentence documents because there was no way the judge would have imposed such a lengthy sentence on a 15-year old. Taylor pursued this route, but the documents that still existed confirmed that the court had in fact imposed a sentence of 24 years.
In their discussions and examination of the documentation, Jeremy and Taylor did not find sufficient evidence for a modification of the 1998 sentence. They did, however, see the potential for an ineffective assistance of counsel claim against the 2009 counsel who had advised Mr. T not to challenge revocation. Thus, they began work on a petition for a writ of habeas corpus, the only legal mechanism to raise a claim of ineffective assistance of revocation counsel; a successful challenge would result in a vacation of Mr. T’s revocation.
Prior to filing the habeas petition, Jeremy and Taylor contacted DOC’s legal counsel, who initially dismissed the idea of resolving the matter of the revocation without litigation. However, after numerous calls, emails, document exchanges, and a meeting with the Director of the DOC’s Division of Community Corrections, the DOC offered to stipulate to the withdrawal of Mr. T’s waiver of his final revocation hearing, so long as Mr. T would agree not contest the alleged violation of his supervision (the conduct that lead to his 2009 conviction). Mr. T accepted this offer and a final revocation hearing was scheduled.
LAIP was forced to withdraw from its representation of Mr. T at the final probation revocation hearing because of its relationship with DOC. LAIP, now with law student Claudia Harke working on the matter, was able to facilitate and ensure that Mr. T received representation from the SPD. Following a hearing, the ALJ agreed that revocation on each count of conviction, which would have amounted to 24 years, was not necessary, and decided not to revoke on all counts from the 1998 conviction. The result was that Mr. T’s sentence was reduced from 24 to 17 years. With the time Mr. T has already served, which was credited against his “new” 17 year revocation sentence, he now has roughly five years to serve until his “mandatory” release date and is already parole eligible.
Federal Appeals Project Student Argues in Front of Seventh Circuit and Wins!
By Meredith Stier
The notice arrived at the end of the day on May 23rd. This was what we had been waiting for, what we had been working towards the entire year: the email from the Seventh Circuit Court of Appeals granting our request for oral argument. We were officially on the court's schedule:
"Argument set for July in the Main Courtroom, Room 2721. Each side limited to 10 minutes."
Ten minutes. After nine months of work, only ten minutes remained for us to persuade a panel of three federal judges to vacate our client’s 15-year sentence and remand for resentencing.
Regardless of the amount of time, the chances of obtaining the desired result were stacked against us. Historically, only 6 to 16% of all criminal appeals decided on their merits result in reversal. Mr. P, our client in the Federal Appeals Project, was clearly the underdog in this fight. But we – my clinic partner Liz Bradley and our Supervising Professor Adam Stevenson – knew this going in. As a result, we had spent untold hours discussing, debating, researching, and writing the potential claims we could raise on his behalf. We wanted to ensure that by the time we reached oral argument, we had done everything in our power to put Mr. P in the best possible position for success.
While Federal Appeals Project students know that they might have an opportunity to represent their client at an oral argument, it was not something that I had spent much time thinking about. First, there is no guarantee that a Federal Appeals Project case will have viable appellate claims, or that a court will grant a request to hear oral argument on claims that are raised. And if the court grants a request, there is little expectation that a client will permit a law student to represent him or her in front of the Seventh Circuit. This is a client’s last chance for relief, and it is certainly understandable if they choose not to entrust that chance to an inexperienced and untested law student.
But Adam, Liz and I had worked hard to build Mr. P’s trust in us. From the outset, we took seriously his belief that his sentence was unfair, and told him that we would do everything in our power to help him. And he then watched as we did just that. He saw his feelings of injustice transformed into viable claims for relief. When Adam explained to Mr. P that he believed I could handle the argument, Mr. P trusted Adam – and trusted me – and gave his permission.
It was humbling to realize that, with one chance at relief, Mr. P entrusted it to me. I kept this in mind as I was preparing for the argument. How would I want someone to represent me, to represent my family? I also kept reminding myself that Adam would never let me tackle this if he didn’t think I was capable of doing it, and doing it well. To that end, Adam did his best to ensure that I would be well prepared. As the date of the argument approached, the details of Mr. P’s claims and his case were as familiar to me as if they were my own.
On the day of the argument, Adam and I arrived at the Everett M. Dirksen United States Courthouse in Chicago well in advance of our scheduled argument. Several arguments were on the docket before ours, which allowed me to watch and get a sense of the court’s protocol. But this didn’t prepare me for how daunting it would feel to actually stand there, alone at the podium, with three highly respected federal judges in front of me and a packed spectator area behind me.
When the court called our case, Adam and I made our way to counsel’s table. Public speaking doesn’t usually unnerve me, but I had never before been in a situation where the stakes were so high and the circumstances so intimidating. Throughout preparation, I had occasionally calmed my nerves by reminding myself that, if absolutely necessary, I could always ask Adam to jump in and handle the argument. But walking up to the podium, a thought flashed through my mind: it is officially too late to ask Adam to step in.
Now facing the bench, I remembered Adam’s final advice: don’t touch the microphone, pay attention to the timing lights, and most important, talk slowly. I had practiced my opening so many times that, even today, it is still ingrained in my memory. But standing there looking up at the judges, I was a bit paralyzed. Being able to start with the words I had rehearsed so many times before provided a measure of comfort that I would, indeed, be able to do this.
When preparing, I had most feared presenting my argument to a disinterested, silent panel. But thankfully, the judges consistently asked questions – questions that Adam and I had anticipated and prepared for in practice. I would love to say that as the argument progressed, I overcame my nerves and fell into a groove. But no; I was nervous the entire time. Ten minutes had seemed like ample time during practice. But in reality, this short amount of time fueled my fear that I wouldn’t have a chance to say everything the judges needed to hear in order to decide the case in our favor. This couldn’t be a situation where, driving home three hours later, the perfect response to one of the judges’ questions would suddenly come to me. If there was something the judges needed to know, they needed to know it now.
At the end of my allotted time, I withdrew to counsel’s table to listen to the Government present its argument. As the judges questioned the Government, it began to dawn on me that maybe, possibly, our side of the argument had some support from the Court. During our rebuttal time, I re-emphasized the points that seemed to sway the judges and reiterate the flaws in the Government’s argument. And then, it was over. The next case was being called and we were scooping up our materials and heading for the door.
I had been cautioned that it would likely be several months before the Court decided our case. But only two weeks after the argument, the Court issued its opinion vacating Mr. P’s sentence and remanding his case for resentencing based on accurate information. Despite the odds, we had won!
This was exhilarating, but not nearly as rewarding as the call to Mr. P to tell him the good news. Over the course of the past year, Liz, Adam and I had listened to, empathized with, and believed in Mr. P. We now had the honor of telling him that there was real hope that the next 15 years of his life wouldn’t be spent behind prison walls. While it was my privilege to have the last word on his behalf, the court’s opinion was the unmistakable result of all of our team’s hard work. But ultimately, this victory was Mr. P’s.
The Time Traveler
by Travis Grimm
It’s a surreal moment when you shake hands with a time traveler.
Reading about my client for weeks, I created this stereotypical persona in my mind’s eye. He would be covered in gang tattoos and physically imposing. He would be disheveled and ignorant. He would be a braggart and uncouth. I combined elements from every television crime show, movie, and rap music video I had ever experienced into this all-encompassing, faceless criminal archetype.
He was seventeen years old when he made a complete stranger lay face down to be shot execution style in the back of the head; all for a car and a few dollars. What kind of man can hold life in so low a regard that they would kill another human being for some pocket money and a used automobile? The cold blooded and callous manner in which the deed was carried out disturbed me to my very core. Killing in self-defense, to protect another, or even in the grasp of an uncontrollable rage were all conceivable to me. Those could all be justified, or at the very least mitigated. But this crime was unfathomable to me.
The victim was twenty-four years old. He had recently been honorably discharged from the military and had started college. These facts struck an eerie chord with me. I had been similarly situated only a few short years back. I had just finished my college degree after having served in the military. The victim was me five years ago.
Morbid curiosity slowly transitioned into contempt and disgust as I worked my way through his voluminous case file. Each page I turned reconfirmed that this cowardly killer deserved to rot in confinement for all his days.
As much as I tried to avoid it, I had to plan a visitation day. I couldn’t ethically just sit on his file waiting to hand it off to the next unfortunate law student. I had to talk to this animal. I had to sit across from this murderous son-of-a-bitch and listen to him ask for my help.
The day I drove up to the prison, it was sunny and warm. A perfect day for visiting a park, or maybe grilling out with some friends and family. I recalled that the victim was planning on meeting some of his friends at a local bar the night he was killed.
The maximum security prison loomed over me like a medieval castle. Only this castle was designed to keep the barbarians in instead of out. I lost count of how many sets of double locking gates I was led through as I went deeper into the prison’s bowels. Every once in a while I would catch the faint sounds of the prison’s denizens reverberating off the concrete walls. Sometimes it sounded like laughing. Sometimes it sounded like screaming.
The guide leading me through the prison’s labyrinthine corridors advised me nonchalantly to keep myself between the inmate and the door during the meeting. She also advised against physical contact; there had been stabbings.
Waiting in a small conference room was the murderer. He was of average height and build, with a cleanly shaved head and a well maintained goatee. He was well spoken, reserved, and very polite. He was nothing like I had imagined.
Conversation was difficult at first, but we soon conversed freely and politely back and forth with relative ease. After having visited six prior clients convicted of a wide assortment of lesser offenses, I can honestly say this visit was one of the more enjoyable. I had clients who were loud. I had clients who were confrontational. I had slow clients, arrogant clients, and delusional clients. This man was none of those things.
All of my previous clients would discuss at length the “unfairness” of their situation. This man did not. He had taken responsibility for and made peace with his past many years ago. He was not concerned with the tribulations of the past or present. He is busy searching for his future.
He has spent half of his entire life incarcerated, and has the rest of it to go. The last moment of freedom that he will ever experience, was the second before he pulled the trigger. Having no future is his punishment. He is forevermore banished to limbo. Stuck between the realms of life and death.
The last contact he had with any of his friends or family members was six years ago. They had simply drifted away over the course of years as they moved, married, and had children. As they continued living without him. Time for everyone else marches forward. But for him, time remains permanently frozen at the day he committed the murder.
He is a lost time traveler, extracted from one point in space and never to arrive at another. He exists adrift in a locked time capsule, ageless and waiting to expire.
He will die before ever having really lived. Much like his victim.
As I got up to leave, I did a surprising thing. I reflexively reached out to shake a client’s hand like I always do at the end of a meeting. I shook the blood stained hand that had held an instrument of wrath and looked into the killer’s eyes.
They were the eyes of a man who stares endlessly into the void of time stretched out before him.
I felt not contempt nor disgust.
I felt pity.
Student Reflections Following the Summer Clinical Program
For the second year, the students in the Remington Center summer clinics were asked to write short essays about ideas or events that came out of their two months of fulltime work in the clinics. Many of the same themes that ran through last year’s essays were repeated this year, but with different twists. A new theme was the conflicting emotions that come with working for the convicted. This theme is set forth above in "The Time Traveler," by Travis Grimm of LAIP.
Students are continually surprised at the warmth and humanity of their clients, many of whom committed violent crimes as younger people. The students also write often of the gratitude expressed by the inmates they meet – gratitude for simply listening and trying to help. There are exceptions to this warmth and gratitude; one particular client merited essays from two students (excerpted below) that describe the frustrations and anger some clients express and how the students handle these.
There were numerous essays about visits to prison. All described nervousness about meeting persons who have committed significant crimes, as well as what prove to be misplaced preconceptions about prison in general. All the visit stories, with one humorous (in retrospect) exception excerpted below, relate happy endings and lots of lessons learned.
Enjoy the adventures of first-year law students as they spread their legal wings.
Prison Visits: Four stories
1. Overcome by first prison visit
Our first prison visit was the first time I had ever been inside a prison. I was nervous. I hardly slept the night before, which was unfortunate because we were leaving prior to 6 the next morning. Regardless, I was ready to go, all dressed up in my new, fancy, grown-up lawyer clothes, and – rather importantly – my heels.
Our plan was to start with client interviews, take a tour of the facility, break for lunch and then review records before heading home. When my client came into the interview room I was so excited. He barely had a chance to sit before I word-vomited all over this poor guy--who I was, why I was here, what these forms are, and why he needed to sign them. When he finally got a word in, he told me that when he was placed on the LAIP waitlist, he resolved his issue on his own. While I am glad that he was able to help himself, this did not help me with any of the nervous energy I had built up.
After several more interviews, I moved on to the tour. This wasn’t your run-of-the-mill tour. There is hardly a single square inch of the prison that we didn’t see, or any minute facts that we didn’t learn. By the time we made it to the health services unit, my feet were throbbing it was very warm inside the prison, and I began to feel terrible.
The next thing I remember, I was looking up at the rest of the group, our tour guides and a nurse. I had fainted. I was told later that one of my fellow students caught my fall and that another screamed. After a few minutes of averting the stares of my concerned group members standing over my cold, sweaty, and utterly humiliated body, I recovered, and was taken back to the air-conditioned records area. The rest of the group didn’t get off so easily. They had to continue with the tour.
2. First prison visit conversation
Me: “Let me get this clear. You believe that the Department of Corrections wasn’t allowed to send you back to prison because you were really supposed to be in prison when the crime was committed?”
Me: “So the argument is that you wouldn’t have been able to commit the crime if the Department of Corrections hadn’t let you out early and therefore you shouldn’t serve time for it?”
3. Prison visit proposal
My second prison visit (my first without a supervising attorney along) occurred in mid-June. By this time I had gotten over the fear of talking to inmates, the nervousness of being in prison and the awkwardness of one-on-one interviewing with a complete stranger.
My interview with a 60-year old man who was missing all of his bottom teeth and had no hair lasted an hour. He chatted about scuba diving, driving his car along the Santa Monica Boulevard, and adventures in Detroit. It was hard to get him to focus on his detainer question and his chances with an Ineffective Assistance of Counsel claim.
As at the end of all of my client interviews, I recapped the conversation and then asked if there were any other issues he would like me to look into. Most client answer “no” or expand on something we already talked about. In this case, my client replied, “Yes, there is one more thing. Will you marry me?”
My face turned bright red and I developed a high pitched nervous laugh. In the Remington Center, when faced with a question from a client that we are unsure of, we are trained to answer, “Let me check with my supervising attorney.” Without even thinking, I heard the words “Let me check with my supervising attorney” spill out of my mouth. My client instantly had a huge smile on his face and replied, “Well that’s not a no, all I need is some hope.”
4. Prison Visits – The luxury of time
The thing that struck me the most this summer was the humanity of our clients. At the beginning of the summer, I was filled with anxiety about meeting my clients. Though I couldn’t put my finger on exactly what I thought would happen (maybe someone would lunge across the table at me?), I had a general sense of foreboding in anticipation of my first client visit. I bid my loved ones farewell, and set out for prison.
When we arrived at the prison, the staff was so nice. They weren’t frowning, or particularly cold or abrupt; in fact, they were downright friendly. This put me slightly more at ease, though my apprehension about meeting our first clients remained.
When our first client walked into the interview room, we took deep breaths and introduced ourselves. Our client smiled broadly and introduced himself. He said that he was really glad to see us. Throughout the course of the interview, he was friendly and eager to speak; his excitement about the meeting was palpable. By the time our hour was up, we were all sold on him and his story.
Our next interview went equally as well, though the client was a totally different kind of person. Though friendly, he was far more reserved than our first client. He briefly told us his story, we asked him our questions, and then the interview portion of the meeting concluded. We asked if he wanted to go, and he said he’d rather stay, so we continued sitting there, getting to know him. As he told us about his daughter, his face lit up. He told us about how he enjoyed reading history books, about his job as a janitor at the prison, and about how terrible prison food is. We told him about how pervasive texting and Facebook are, and he marveled at it.
I realize that we’re in a unique position in which we have the time and resources to give each client our full attention, and that they’re naturally going to be grateful, and (in most cases) nice to us. Most attorneys do not have this luxury. I’m glad that I had the chance to go into the prisons as a bearer of hope, and that I got to see my clients as who they actually are: people. In our criminal justice system, which can be so impersonal, I know that’s a rare experience.
Tight Quarters for the Law Students: The Benefits
When you first walk into the Remington Center one of the first things you notice is just how close together the student desks are. I had no idea how I was going to get anything done. I made plans to flee to the library. But my supervising attorney encouraged me to work in the office to protect client confidentiality. So I stuck with it. It turns out "collaboration" is the greatest thing in the world.
To supply some background: the first year Legal Research and Writing courses, exams, Moot Court competition, and Law Review write-on all have strict non-collaboration policies. So you enter the Remington Center after two semesters of no collaboration on complex legal issues. And suddenly being able to sit around and discuss problems with other LAIP students was amazing. Your small group members see problems differently and can help you find parts of an issue that might not have been apparent at first glance. And getting to talk out issues also gave me experience with issues that my clients didn't have so that I'll be more ready to take on those problems in the future. I would not have guessed that being squished into cubicles would be such a great experience, but it is absolutely an integral part of the process.
Tough Clients: Three Stories (only two different clients)
1. Passing review
The Wisconsin Secure Program Facility used to be a super max and you can tell that from the minute you walk in. There were more doors and locks than other prisons, with long hallways that felt like you were headed into a basement. We were shut into a tiny room with glass between us and the other side and a phone to communicate. Our client came in and after introductions he asked us why we wanted to be lawyers. He wanted to know why we were passionate about criminal law. We answered and apparently we had passed the test because he then explained that he only wanted students on his case who truly cared; he would request new students if he didn’t feel the new ones were passionate about his case or people like him.
2. Being fired
Mr. X has “fired” us at least 4 times. For most clients, the Innocence Project is their last hope at exoneration and getting out of prison. Thus, it was hard for me to understand why Mr. X couldn’t see that we were in his corner, fighting the same fight. Instead, he has questioned our loyalty and motives throughout our representation, “firing” us every time he feels threatened.
This lack of trust should not have surprised me. Most of our clients have little faith in the justice system. They have been let down so many times, by a detective, the prosecutor, the judge or even their defense lawyers. Learning how to approach clients with this level of paranoia has been a challenge.
Previous students played nice with Mr. X, hoping to appease him enough to get through the DNA testing. However, he has refused to cooperate, whether by placing unscheduled collect calls to us or by abruptly firing us for “lying” to him. Feeling we had lost control of our relationship, we shifted gears. Instead of apologizing to him for our “failure to communicate,” we explained to him all the ways we have honored our representation agreement. We then gave him the option of firing us and explained to him the consequences of that decision. The ball is in his court.
3. “I know that you don’t know criminal law very well.”
Throughout the summer I had heard some of my peers discuss some of the off-the-wall letters they received from their clients. I heard about love-letters, the frenzied mailing of multiple copies of the same documents and, on occasion, letters expressing anger with the pace or direction of the investigation. For most of the summer, my correspondence with my clients was pretty uneventful, and nearly always quite cordial. In July, however, I received a letter from Mr. X that practically shouted his frustration off the paper.
Mr. X wrote that he is now “frustrated” with the way we are “messing around” with his case. Further, I am singled out from among my partner and supervising attorney. I have attempted to “deceive” him by saying that he could lose his constitutional rights through DNA testing. Of course, we only said his constitutional rights would get him nowhere if DNA tended show he committed the crime, not that they’d disappear. He also stated: “I know that you don’t know the criminal law very well, so I don’t blame you.” Ouch, but thanks for understanding, I guess.
Frustration at Not Knowing the Truth: Two Stories
1. Preconception: I will know when a client is innocent
I started my summer working for the Wisconsin Innocence Project with a preconception that I would know if my clients were truly innocent. It turns out I was wrong.
When I say that I thought I would know if my clients were innocent, I mean know in the sense of . . . well know. I thought that we would investigate cases until we found something, DNA evidence or some other new evidence, that would prove (or disprove) our client’s innocence. The reality has been quite different. In the majority of my cases, even those for which we have very strong DNA evidence, the evidence does not completely eliminate the possibility of our client being guilty. In fact, most of my clients could have committed the crimes. I struggled with this notion for a while, before coming to the conclusion that it doesn’t matter whether I think my client is innocent or not. What does matter is whether there is any legal help I can offer to my client.
2. Frustration at no firm answers
One of the most eye-opening experiences I have had in the Remington Center is the realization of how messy cases can actually be. In school, we are given court opinions and writing prompts with clear and distinct fact patterns. None of the important facts are in dispute, only legal questions. In real life, cases are filled with ambiguity and uncertainty. I have been working in the Innocence Project, so most of my cases have holes in the story. We would not have a case for which there was not an alternative theory.
Even with all our work and investigation, most cases will never be completely well-defined. This idea has frustrated me throughout my time with the Remington Center. It has been hard to spend so much time and effort reading and learning about specific incidents with the understanding that the work may never lead to firm answers.
Preconception: Fantastical stories cannot be true
One of the most surprising events of this summer taught me the importance of listening, trusting, and following up on even the wildest tales a client may tell.
“Joe” is serving a long sentence for a string of crimes he committed in the 1990s. His life story is filled with trauma and heartache. Despite this, Joe is always upbeat. We planned to prepare a parole letter when a major infraction in the prison made this appear to be a futile exercise. The story Joe told when I visited him in the segregation unit about the alleged infraction sounded like something out of a crime drama. He acknowledged that contraband was found by guards in his cell, and that he was thus placed in segregation and his security classification upgraded to maximum. Joe said, however, this was all a mistake; he was acting to get the contraband out of the hands of other inmates.
Joe’s story seemed implausible, things like that do not happen. However, I followed up on his story, and a DOC staff member confirmed everything Joe had told me. The punishments were to protect his identity as an informant. The staff member said Joe got caught up in remarkably bad timing.
This, and other experiences this summer have taught me that there are many sides to a story, and just because our clients have been found guilty of a crime, does not mean that they are guilty of every crime or infraction that is thrown at them. It is important to listen and follow up with their concerns and stories to ensure that they are adequately represented.
Restorative justice inspires
My favorite experience working for the Restorative Justice Project has been working with D, who has spent the last 38 years in prison for a homicide he committed when 17 years old. The victim’s sister initiated this dialogue with D after seeing him at his recent parole hearing. According to the victim’s sister, the image she had of D from his trial was not the image she had when she left the parole hearing. She sensed a man filled with remorse for what happened and, most importantly, a changed man who is taking advantage of all the programs prison has to offer.
The sister of the victim wants to see D leave prison and wants to see him “turn something bad into something good.” She is taking part in a dialogue overseen by the Restorative Justice Project as a way to honor her deceased brother and is ready to forgive D and help him do some good with his life. I leave my meetings with each of them feeling optimistic and genuinely happy to be doing this work. They are a great example of what happens when two people are brought together after terrible events and choose to make something good come out of it.
Segregation is not like the television shows; it is far worse. It is literally hell on earth or, as the correctional officers refer to it, “a prison within prison.” Hearing this phrase heightened my anxiety and fears before I even went in. Once I went inside the two sets of locked doors and what seemed to be an army of correctional officers. I immediately felt sorry for them, I felt horrible, and I felt helpless. The inmates are handcuffed whenever they are being transported, whether from one room to another or even to the shower stalls where they are handcuffed to the barred door. The inmates are yelling, pounding or making some type of noise from their cells. There is no privacy in segregation, some of the rooms are completely glass, where the guards monitor the inmates 24/7- like a fish in a glass tank. When I had an interview, I was between thick glass panels, two locked doors, and my client was shackled from his wrists to his stomach and ankles. There was no way that he could have come in contact with me even if he was not shackled.
Friends of the Remington Center Endowment In Need of Support
The Friends of the Remington Center Endowment (FORCE) provides small stipends for the students who choose to enroll in the summer clinical programs and summer externships of the Remington Center. Even this small stipend is very much needed, and appreciated, by the students. The initial capital to establish FORCE came from Frank Remington and his family. Others, mostly alumni of the Remington Center clinical programs, have provided additional donations. Unfortunately, the Endowment is not self-supporting, and runs the risk in the near future of not being able to support students in the manner it has in the past.
Given that we represent underserved prison populations, there is no obvious base of financial support for the Remington Center. As such, we depend on the support of our alumni and those friends who have demonstrated an interest in the mission of the Remington Center clinics.
If you can provide financial support of any amount, it would be greatly appreciated. Donating to FORCE through the UW Foundation is simple and can be done online, if that is your preference. To donate, please follow this link.