Gould, J --- "It's Not Just for Law School Anymore: Clinical Education on the Death Penalty for Undergraduates" [2004] LegEdDig 5; (2004) 12(3) Legal Education Digest 7

It’s Not Just for Law School Anymore: Clinical Education on the Death Penalty for Undergraduates

J Gould

[2004] LegEdDig 5; (2004) 12(3) Legal Education Digest 7

53 J Legal Educ 2, 2003, pp 174–191

At a number of law schools, legal clinics assign students to criminal cases, and a few allow students to work alongside counsel on capital trials. Rare, however, has been the undergraduate program that involves students, in capital cases, whether investigating matters after conviction or assisting at trial. There is merit in such courses, for students would do well to appreciate the philosophical, legal, ethical, and equitable issues surrounding capital punishment. Nonetheless, capital punishment presents a unique opportunity to advance service learning for undergraduates, particularly in a clinical setting.

Service learning is best defined as instruction that attempts to link and integrate field experiences with academic subject matter by extending the learning process beyond classroom presentation of curricular concepts. A subset of active learning, service learning encourages students to reflect on what they have seen in practice and attempts to integrate their experiences from the field with academic theories they have been taught.

With an eye on expanding such clinical options, a pedagogical experiment was recently conducted at George Mason University, USA. The course borrowed from both law school clinics and traditional undergraduate internships to focus on three pedagogical aims: first, to offer students a firsthand account of how the justice system does work; second, to refine students’ research skills; and, finally, to heighten their awareness of ethical concerns and to commit them to remedying the various shortcomings of the American justice system. The course was designed to encourage reflection and analysis of justice policy by matching experiential education with academic research, classroom analysis and student discussion.

Originally it was proposed that students would assist appointed counsel on capital cases by conducting factual investigations and trial preparation over the semester. We were fortunate that defence counsel were largely supportive of the proposed clinical seminar, but surprisingly we were able to identify only one case that met our criteria for the course. Unfortunately, all students could not be placed on an active capital case, because there were not enough attorneys or faculty to supervise the students on a single matter at the one time. Hence a second team was formed, which was not responsible for seeking to prove a defendant’s innocence but for chronicling the investigation and prosecution of capital defendants as a whole to provide a new and objective perspective on the factors behind wrongful prosecutions.

Students were selected on the basis of their academic records, interest in the topic, and ability to devote at least ten hours each week to case work. Most of the class had previously taken a course in criminal procedure, but only a few students were familiar with legal duties and privileges, elements central to the work the class would undertake.

The first team worked on the active case and confronted an alleged murder between close personal acquaintances. Early in the term defence counsel came to campus and briefed students on the case, its status, and the defence’s overall theory. Throughout this time the students were extremely careful about maintaining secrecy. The students’ work spurred the attorneys to move faster on their investigation. The fieldwork provided one of the most interesting lessons of the semester. Most of the students were white, all came from suburban or rural backgrounds, and only a couple of them had had much experience with people of different races.

The students on the second team investigated cases of wrongful conviction, seeking to understand how innocent defendants could be convicted of capital crimes. Selecting the cases turned out to be the easy part. Determining where to begin the research was difficult for the students. The students’ findings were not only thorough; they also pointed to common problems in the investigation and prosecution of the cases. For example, investigators were poorly trained, eyewitness accounts were inaccurate, informants were compromised and defence counsels were inadequate.

The report, once completed, was used by the students to brief a panel of justice officials on their findings. The university released the report publicly, and the students and their teachers have been invited to a few conferences to speak about their work.

Despite the challenge, the seminar was ultimately a rousing success. At least in this course, undergraduates showed themselves capable of handling clinical assignments generally reserved for graduate journalism or law students. The students also grew academically and personally and honed their analytical and advocacy skills.

From a pedagogical standpoint, the course was even a larger success. Student evaluations were uniformly positive, with students praising the mix of experiential and theoretical learning. These accolades aside, the course came with several challenges. Some of these were logistical, requiring teachers to secure resources and apportion credit for students’ work. Although the logistical challenges were time-consuming, the greater challenges were substantive, involving students’ interactions with one another, the material, teachers, and their roles as advocates.

One of the greatest challenges for the members of the first team was the prospect of aiding a potential murderer. This reaction had been anticipated but surprisingly the students in the second team were found to be worried also about second guessing trained detectives and prosecutors. In retrospect, these issues should have been addressed with the students on the first day of class, for as undergraduates they had yet to be socialised to one of the law’s central and most controversial norms — that it is necessary, and indeed potentially honourable, under our system of adversarial justice to represent a criminal defendant against the state.