In September, California Governor Gavin Newsom signed Assembly Bill 3070, a bill that will transform jury selection in the state's criminal trials. The clinic was instrumental in drafting AB 3070 and published an eye-opening report, in part to support the legislation.

Whitewashing the Jury Box: How California Perpetuates the Discriminatory Exclusion of Black and Latinx Jurors, co-authored by five students and Lis, shows that racial discrimination is a persistent feature of jury selection in California. The exhaustive study investigates the history, legacy, and ongoing practice of excluding people of color — especially African Americans — from state juries through prosecutors’ peremptory challenges. The students’ research involved reviewing and analyzing nearly 700 Batson cases decided by the state appellate courts, as well as dozens of California district attorney jury selection training materials, which are now posted on the clinic’s website. AB 3070, which replaces the Batson standard with a procedure that eliminates the first step of the inquiry, includes a list of presumptively invalid reasons, shifts the burden of proof to the party exercising the strike, and requires courts to consider implicit and institutional bias in ruling on an objection to the strike. The clinic’s bill was one of seven signed bills spearheaded by Berkeley Law’s clinics and centers this year.

In October, the clinic and Dean Chemerinsky filed an amicus curiae brief on behalf of Governor Gavin Newsom in the California Supreme Court in support of Don’te McDaniel, who was sentenced to death in Los Angeles County. The Court asked for briefing on an issue that affects all pending capital cases: Does the state’s jury trial right require the application of both the beyond-a-reasonable doubt and unanimity standards to the finding of aggravating factors and the penalty determination? The brief shows why the historical and present-day relationship between racism and capital punishment in California requires an affirmative answer. Read the brief, the governor's press release, and the law school story.

There was a dramatic development this year in the case of Toforest Johnson (shown at left with former clinical supervising attorney Katy Miller '07; photo by Beth Shelburne), an Alabama death row inmate who has long been represented by the clinic and the Southern Center for Human Rights. In June, Jefferson County District Attorney Danny Carr made a formal request for a new trial. Many years’ worth of clinic students have worked on this case, drafting trial and appellate court pleadings, interviewing witnesses, analyzing discovery documents, and responding to media inquiries. The district attorney’s request, which is now before the state’s attorney general, marks the latest development in the prosecution of Johnson’s case, which continues to reveal misconduct and race discrimination 22 years after he was convicted.

Last year, working with the guidance of co-lead counsel Joe Flood, a team of six students filed a petition for rehearing en banc challenging the Eleventh Circuit’s 2-1 denial of habeas relief in Mark Jenkins’s Alabama capital case. The clinic has been representing Mr. Jenkins for over a decade. Although the Eleventh Circuit denied the rehearing petition this summer, it took nearly one full year to rule, and the court did helpfully amend its ruling in response to the arguments in the petition. This academic year, a new team of six students is gearing up to file a petition for certiorari to the United States Supreme Court and strategizing about other creative ways, both through litigation and less traditional means, to advocate for Mr. Jenkins.

Clinic students have been working on Willie Burgess’s case since the early days of the DPC. Mr. Burgess has been on Alabama’s death row since 1994, and teams of students have, over the years, developed his post-conviction claims of ineffective assistance of counsel, juror misconduct, discrimination against women in jury selection, and many others. Those claims were pending in the trial court in Morgan County, Alabama for an astounding 17 years before the judge presiding over the case recently denied Mr. Burgess’s post-conviction petition in a 177-page order issued just before the fall semester began. This semester, a team of six students is drafting the appeal from the judge’s order, which will be filed in the Alabama Court of Criminal Appeals.

On behalf of our California client, La Twon Weaver, and with our co-counsel James Thomson, the clinic has been litigating simultaneously in the San Diego County Superior Court, the California Supreme Court, and the United States District Court for the Southern District of California. This past year, three students assisted in drafting a 400-page amended federal habeas petition establishing the unconstitutionality of our client’s conviction and death sentence.

In 2001, Elisabeth Semel became the founding director of the Death Penalty Clinic at Berkeley Law. The clinic’s founding donors were Nick McKeown and Peter Davies. Their ambition — law students could be vigorous and visionary advocates for individuals facing the ultimate punishment — has guided the clinic since its inception. Over the past two decades, their financial commitment has been multiplied by the generosity of DPC alums, foundations, law firms, and numerous friends. Lis and Chuck Weisselberg, who taught half-time in the clinic, began with an eight-student class. Ty Alper joined the clinic in 2004. Gifted fellows and staff attorneys — Kate Weisburd, Bidish Sarma, Katy Miller, and Mridula Raman — have partnered with Lis and Ty as colleagues in advocacy and clinical teaching. The clinic now averages 18-22 students in its year-long program. Through individual representation and impact litigation, the clinic continues to help students develop outstanding legal skills and serve clients facing capital punishment. We hope to have an in-person anniversary event in the fall of 2021 during alumni weekend. Stay tuned for details! (Pictured left to right: Chris Lau ’14, now at the Bronx Defenders, and Jolene Forman ’12, now at the Chan Zuckerberg Initiative, with DPC co-counsel Emily Gilbert outside a Georgia courtroom before a pre-trial hearing in 2011.)

Two clinic students were honored last spring for their outstanding work in clinical advocacy. Savannah Reid ’20 won the 2020 Brian M. Sax Prize for Excellence in Clinical Advocacy for her outstanding work in the Death Penalty Clinic and the Policy Advocacy Clinic. Bill Nguyen ’20 won the Sax Prize Honorable Mention award for his excellent work in the Death Penalty Clinic and the East Bay Community Law Center’s Youth Defender Clinic. Reid helped lead a six-student team representing a client in Alabama and spent four days there interviewing witnesses. She developed a plan to reach out to sensitive witnesses, drafted portions of an appellate brief, and helped craft the media strategy for the case. Nguyen worked with a team of students and lawyers representing a death-sentenced prisoner in Alabama.

It’s been a busy year in Berkeley Law’s clinical program. We rise to meet the demands of the moment, and across our 14-clinic program, our faculty, staff, and 300 students annually are providing direct legal services, litigating cutting-edge issues, and conducting policy-based research. View our Annual Report to learn how clinical faculty and students are working to advance social justice.

We asked our alums to let us know about their efforts to protect their incarcerated clients during the pandemic. The responses are reflective of the tenacity and creativity with which they are championing the health and safety of the adults and children who are especially vulnerable to COVID-19. Our alums are consistently modest about their accomplishments. No doubt the collection of accounts we published are the tip of the iceberg of their inspiring advocacy.