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Tuesday, June 21, 2011

The Advocacy Experience at the Criminal Appeals Clinic, University of Mississippi School of Law

The National Center for Justice & the Rule of Law (NCJRL) (http://www.olemiss.edu/depts/ncjrl/index.html) was created at the University of Mississippi School of Law in 2001 by a Department of Justice training grant.

The primary focus of the NCJRL has been to provide educational opportunities in the highly-specialized practice of criminal law for judges, lawyers, and law students. The Criminal Appeals Program and the Prosecutorial Externship Program was established by the NCJRL as a part of the regular curriculum at the law school with the goal of offering students a concentration of study in criminal law and procedure.

The Criminal Appeals Clinic (CAC) provides a “live-client” appellate training program designed to instruct third-year law students in effective methods of issue identification, research, and brief-writing and, at the same time, offering the students the opportunity for direct participation in the pro bono representation of an indigent person awaiting review of their cases on appeal by the Mississippi appellate courts.

Along with the general clinical skills aspect of the CAC, the classroom component of the course also seeks to instruct the student on the fundamentals of criminal appellate practice, including the review of trial transcripts and record documents, the identification and evaluation of legal, procedural, and constitutional issues; the efficient use of research applications for the issues chosen for the brief; advanced instruction on the “fact-centered” method of brief-writing; and employment of “mega-editing” techniques to polish and refine the final work product.

Students participating in the program are: appointed a case partner; admitted to the limited practice of law; specially appointed to directly represent the client in the Supreme Court under the supervision of the clinical professor; and co-sign the Brief of the Appellant as an attorney of record in the case. In addition to the classroom component, each case team receives at least two hours per week of “one-on-one” clinical supervision in the drafting, editing, and revision of each section of the brief.

Since 2002, the CAC has provided this advanced training to more than 120 third-year law students who have represented indigent clients in more than 70 cases, and obtaining 12 case reversals or adoption by the Court of their position in amicus briefs.

A request is filed in each of the clinic’s cases to give the students the experience of participating in oral arguments before the Court in another case filed from the previous semester. Because of the generous cooperation of the Mississippi appellate courts, the Criminal Appeals Clinic routinely receives two or three grants of oral argument each semester. To date, over 30 oral arguments have been delivered by the student/lawyers participating in the program. (Link to the CAC’s oral argument videos posted online in the Mississippi Supreme Court archives: http://www.olemiss.edu/depts/ncjrl/CriminalAppeals/cac_oralargumentvideos.html).

The CAC student/lawyers have won significant, gratifying, and precedent-setting reversals for their clients (http://www.olemiss.edu/depts/ncjrl/CriminalAppeals/cac_decisions.html), including the following cases:

James C. Newell, Jr. v. State was reversed for a new trial on grounds that “[t]he trial court committed reversible error in its evidentiary rulings [admission of a toxicology report] and in refusing Newell’s requested jury instructions on the newly revised statutory presumption under the ‘Castle Doctrine.’ . . .We hold that the jury should have been instructed that, if it believed Newell’s version of the events surrounding his altercation with Boyette, then it should presume that Newell used defensive force against Boyette because he ‘reasonably feared imminent death or great bodily harm, or the commission of a felony upon him . . . or against the vehicle which he was occupying.’ So the refusal of instruction D-22 necessitates a new trial.” Link to the opinion of the Court: http://www.mssc.state.ms.us/Images/HDList/..%5COpinions%5CCO64409.pdf

Vincent Carnell Hudson v. State was reversed and rendered on grounds that “[t]his certiorari review arises from Vincent Hudson’s conviction of possession of a ‘trace’ amount of cocaine found in his clothes. Because the evidence introduced at trial was insufficient to show that he knew the cocaine was present and that he consciously and intentionally had possessed it, we reverse and render the imposition upon him of a life sentence without the possibility of parole. Because the State did not prove beyond a reasonable doubt that Vincent Hudson was aware of the presence and character of the ‘trace’ amount of cocaine in his pockets, or that he consciously and intentionally possessed it, the evidence put forth at trial was insufficient to support his conviction for possession of the cocaine. Therefore, we reverse the Court of Appeals and reverse and render Hudson’s conviction and [life] sentence and order him discharged.” Link to the opinion of the Court: http://www.mssc.state.ms.us/Images/HDList/..%5COpinions%5CCO61747.pdf

On August 11, 2005, the Mississippi Supreme Court reversed Ardes Johnson v. State, remanding it for a new trial on grounds that two instructions on self-defense and “pre-arming” did not correctly state the law to the jury for their deliberations. Link to the opinion of the Court: http://www.mssc.state.ms.us/Images/HDList/..%5COPINIONS%5CCO27989.PDF On the second appeal after re-trial on the original charge of murder, the Mississippi Supreme Court reversed and rendered his life sentence on July 31, 2008, thereby discharging him from prison, holding that the Appellant had conclusively established he acted in necessary self-defense in the killing under the Weathersby rule, a “longstanding, seldom-applied, legal doctrine. . .” Link to the opinion: http://www.mssc.state.ms.us/Images/HDList/..%5COpinions%5CCO49972.pdf

Tabitha Miller v. State was reversed and remanded for a new trial on grounds that her self-defense theory of the case involving the numerous prior instances of domestic abuse committed against her by the deceased was not allowed to be fully presented to the jury through the testimony of police officers, thereby depriving her of a fair trial. Link to the opinion of the Court: http://www.mssc.state.ms.us/Images/Opinions/CO41430.pdf

After attending the May 2011 conference of law teachers and trial coaches at Stetson University College of Law’s Center for Excellence in Advocacy, the “what, how, and why” method of specific critique of the student’s performance and Joshua Karton’s exercises designed to improve the style of delivery in advocacy training will be incorporated into future CAC oral argument preparations. As a capstone educational experience, the Criminal Appeals Clinic offers students the opportunity to serve as advocates on the written page and in the argument chamber, bringing “real world” opportunities to represent actual clients in difficult cases even before they graduate from law school.

This article was contributed by Phil Broadhead who is the Clinical Professor and Director of the Criminal Appeals at Ole Miss law school. Phil can be contacted at:

EMAIL: pwb@olemiss.edu - Web Page: http://www.olemiss.edu/depts/ncjrl/CriminalAppeals/cac_gi.html
OFFICE PHONE: 662.915.5560

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