On January 25, 2016, the United States Supreme Court issued its much anticipated decision in Montgomery v. Louisiana, ruling that its 2012 decision in Miller v. Alabama, which banned mandatory life without parole sentences for juveniles convicted of homicide, must be applied retroactively.
In Miller, Justice Elena Kagan wrote that “children are not simply miniature adults.” Her statement echoed Justice Kennedy’s observation in Graham v. Florida—which banned life without parole sentences for juveniles convicted of non-homicide offenses—that criminal laws that failed to account for the unique attributes of youth were flawed under current constitutional analysis. Following Miller, lower courts split on the ruling’s retroactivity, with a majority applying it retroactively but several courts declining to do so.
That debate has now been settled. In the wake of Montgomery, as many as 2,000 individuals sentenced to mandatory life without parole for homicides they committed when they were under the age of eighteen will get a second look—either through a re-sentencing hearing or parole eligibility. This includes individuals who were sentenced as far back as the 1950s in some states.
Since 2005, the Supreme Court has now issued five opinions that firmly establish that young offenders occupy a special place under the Constitution—particularly the Eighth Amendment’s ban on cruel and unusual punishment. From the death penalty to life without parole in non-homicide cases to mandatory life without parole in homicide cases, the Court has moved decisively to limit the application of our harshest sentencing practices to children who are prosecuted and convicted in the adult criminal justice system.
Montgomery sits firmly in that pantheon. Writing for the majority, Justice Kennedy forcefully underscored the restrictions the court had placed on life-without-parole sentences for juveniles in Miller, limiting them to the rare and uncommon instances where the youth is “permanently incorrigible” or “irredeemably corrupt.” This is an exceptionally high bar. Adolescence is defined by its transient nature—a dynamic rather than fixed period of human development that precedes adulthood and maturation. Research teaches that most children will naturally desist from criminal offending in their early to mid-twenties. Adherence to Miller’s mandate should preclude life without parole sentences for all but a tiny fraction of this population of juvenile offenders. This is the challenge that all stakeholders in the justice system must meet going forward.
Our thanks to Marsha Levick, Deputy Director and Chief Counsel of the Juvenile Law Center (JLC) in Philadelphia, for contributing this post to The Legal Advocate. Ms. Levick, a nationally recognized expert in juvenile law, co-founded the JLC in 1975. She is a passionate advocate for women’s and children’s rights, having authored or co-authored numerous appellate and amicus briefs in state and federal appeals courts throughout the country, including many before the Supreme Court of the United States. Ms. Levick may be reached at email@example.com.
Every lawyer asks this stand-out question – sometimes musing while brushing teeth, or maybe staying quiet when watching others talk about their stand-out moments.
Talent is one thing. Put it in a category with knowledge, skill, and diligence.
Lawyers are aware if they are good at what is necessary: good work product; conscientious ethical practices; friendly attitudes toward peers; courtesy to superiors; pitches to work with the powerful partner or supervisor; notes and calls to potential clients.
Yet these measures are “the price of admission.”
So what makes the lawyer a stand-out success?
Being different, remarkable,
How can lawyers work up to being “courageous” and “right”? Strategic opportunities to develop courage are few when your days are filled with client matters, and the senior lawyers in your office are equally booked for billable work. Where can you find safe places to try to fail, and to fail without risk?
Coaching in the office? Time and the private practice business model permits very little time for that. At the beginning of my career in a preeminent large firm, I could go to the assigning lawyer, could tag along to a court appearance (the firm organized these tag-alongs for associate groups), and could ask the partner to “tag along” with me so that I had a coach as I ventured into my first depositions (expert depositions, at that). Our billable hour requirement — a new idea then — was 1750.
Coaching from an outsider? That works for business development processes. But it is impossible to find tag-along coaching, even if it were affordable.
No, you must look for places of low risk for high-risk experiments on yourself. Here are the requirements of that place: you can perform experimentally; you know your experiment will fail because you are courageous enough to try; the failure teaches you something new; and you will repeat the experiment until you succeed.
Since you are taking that level of risk, you must look for the place that gives you the best teaching and coaching you can get. No pain without gain!
I have that place. It is NITA – a huge experiment by you on yourself.
We are safe. We are masters at teaching advocacy skills. We are coaches. We demand you repeat. We show you what to change.
And you come away with courage that you will always carry with you.
If you don’t know why NITA programs are the answer, please call me. I have the passion, the experience and the history. More, I have your best interests foremost in mind.
Think . . . Never again musing only into your mirror. Never again hiding in silence while others seem to gain courage. Join in with the wise learning at NITA: “trying to fail in a new skill, with friends.”
Karen M. Lockwood, Esq.
President and Executive Director
National Institute for Trial Advocacy
The three Next Generation Faculty (NGF) Class of 2015 has been chosen from a dozen candidates. This year’s outstanding class of young, up-and-coming NITA faculty members consists of:
Ms. Cassidy is the Director of the Shepard Broad College of Law’s Veterans Law Clinic, and staff attorney.
Prior to joining NSU she was the supervising attorney for the EACH (Economic Advocacy and Community Health) and VALOR (Veteran Advocates Legal Outreach & Representation) Projects at Coast to Coast Legal Aid of South Florida, Inc. Ms. Cassidy created and implemented the VALOR Project which is a medical legal partnership with the Department of Veteran Affairs.
Ms. Cassidy is experienced in complex civil and criminal litigation and has a solid background in state and federal practice. She has served in the public sector as a Chief Assistant for the Broward County Public Defender and as an Assistant Attorney General.
Ms. Cassidy received her J.D. from Seton Hall University School of Law where she was a member of the Legislative Law Journal. She is a former Litigation Counsel for Carnival Cruise Lines, and practiced law in New York and New Jersey with Garberini & Scher and Bower & Gardner.
Mr. Haden has worked as an Assistant U.S. Attorney for the Southern District of California in the General Crimes Section since 2010. Since 2013, he has served as the Project Safe Neighborhoods Coordinator for the Southern District of California, a nationwide program designed to reduce gun and gang crime. Prior to joining the U.S. Attorney’s Office, he served for two years as a law clerk to the Honorable Thomas J. Whelan of the U.S. District Court for the Southern District of California. He received his J.D. from the University of San Diego, in 2008. Mr. Haden received his B.A. from Stanford University, in 2000. Upon graduation from Stanford, Mr. Haden was commissioned as an officer in the U.S. Navy. Mr. Haden served in the Navy for five years, which included two overseas deployments.
Jason R. Young
Mr. Young practices in the area of insurance defense litigation with Pearl Schneider LLC. He has extensive experience in all aspects of litigation including discovery, motions practice, depositions, mediations, arbitrations, and jury trials, throughout Colorado.
Prior to joining Pearl Schneider LLC, Mr. Young served as trial counsel with Hunter & Associates in Denver. As captive litigation counsel for Farmers Insurance, Mr. Young litigated cases ranging in value from thousands of dollars to over one million dollars. He successfully completed eleven jury trials in three years.
Before focusing on civil litigation, Mr. Young spent his first eight years in practice as a Deputy State Public Defender in Adams and Denver Counties. He practiced predominately in District Court handling an extensive caseload, comprised entirely of felony cases, in various stages of litigation. He served as lead counsel, and completed over forty jury trials, on a wide range of criminal cases including homicides, not-guilty-by-reason-of-insanity pleas, sexual assaults, crimes of violence, and economic crimes.
Mr. Young’s entire career has been spent litigating cases, both civil and criminal, in the courtroom. Mr. Young has completed over fifty jury trials throughout Colorado.
As members of the NGF Class of 2016, Ms. Cassidy, Mr. Haden and Mr. Young will be trained and invited to teach at the geographically diverse NITA trial and deposition programs between January 1 and December 31, 2016, to gain more experience to NITA learning-by-doing teaching.
One of the primary initiatives of the NITA Foundation is to provide tuition assistance to legal staffers at public service agencies whose lean budgets often put specialized advocacy training out of reach. But thanks to the generous support of our donors throughout the country, it’s possible for public services lawyers to attend NITA’s advocacy programs so they can fine-tune their courtroom skills as a way to serve the greater good. That’s how I met Emily Cooper, who attended the Northwest Trial Skills (NWTS) program in Seattle this fall. She’s a staff attorney for Disability Rights Washington, which is a nonprofit agency working to protect the rights of people with disabilities in Washington State. Emily represented her office at NWTS through a scholarship underwritten by the NITA Foundation and recently talked to me about her experience.
What’s a typical day in the life of a public services lawyer like?
The only thing that is typical is the overwhelming and persistent need for competent, affordable legal representation. Given finite resources to respond to the demand, many legal aid providers are in the untenable position of figuring out who, out of the needy, actually receives our services (especially costly services like litigation). An analogy I often hear is that practicing as a public services lawyer can feel like drinking out of a firehose.
What legal problems do you help your clients resolve?
The vast majority of cases I work on relate to either discrimination or the abuse and neglect of individuals with disabilities. For example, I went to trial this past spring regarding a class of pretrial detainees who languished in solitary confinement for court-ordered mental health services that were unavailable due to the state’s lack of resources. Without timely receipt of these services, several of my clients died or suffered permanent reduction in their cognitive functioning. (Editor’s note: Click here to read more about this crisis and what Emily’s agency, Disability Rights Washington, is doing about it.)
How often are you in court?
Rarely, but it is increasing. My agency is unique its ability to access and obtain records. See, e.g., 42 U.S.C. § 15043(a)(2)(J)(ii) (providing agencies like Disability Rights Washington twenty-four hour access to records of individuals with disabilities who have died while in facilities). Because we are able to quickly obtain necessary documentation, I am able to quickly discern any underlying issues and try to resolve them with the entity as quickly as possible to prevent any future harm. However, since the latest recession, many governmental services have been reduced and so we are seeing more and more entities push back on reforms or plans of correction that have fiscal implications. So, I went from having no cases in active litigation to three federal class actions in less than a year.
What is the most challenging part of working with the population you serve?
The bias that they experience at every turn. The assumptions the public, the media, the legislature, and even other members of the legal profession regarding people with disabilities (in particular, people with mental illness) are astounding. Implicit bias is not only real, but disproportionately impacts the lives and rights of people with disabilities.
What do you enjoy the most about your work?
Winning. It’s not about ego; instead, a win for my client often means long-term systemic improvements that benefit a whole class of individuals. When you are able to secure such a victory for your client—which is usually about obtaining necessary services or being free from discrimination versus a monetary ruling—you feel a part of the larger social justice community. This feels particularly good when you think about how affirming such a ruling could feel to marginalized client[s] who, even years after the[ir] case is over and done, will remember that their rights are equally important and worth fighting for. They may even be able to use similar strategies and techniques to resolve similar issues on their own, thereby truly becoming actualized in their own agency and autonomy.
Is there a particular trial skill you thought you had down cold but realized at NWTS wasn’t quite there?
Oral argument. My grandmother said I could talk the bark off a tree, and I have a long history of feeling comfortable public speaking. However, I didn’t realize how quickly I spoke or how I expected my audience (judge or jury) to understand some of the context. One of the best pieces of feedback I got a NITA was “landing my point on the beach.” The analogy is that I get ideas that were partially formed as waves but, like waves, they overlapped and could be construed as indistinguishable. Taking time to slow down and using clear, short sentences has been beyond invaluable.
How do you think finessing your trial skills has an impact on your clients?
Absolutely. The key to successful advocacy is competent legal representation. I have always had the drive to ensure my client’s story is heard. Now I have the ability to ensure that story is persuasively told.
What surprised you about yourself when you were at NWTS? (A good surprise, or a suboptimal one—just something you were surprised to learn about yourself.)
You need to anticipate what the jury may assume compelled the actors to take one action or another and anchor, in advance, the narrative you want the jury to hear about the parties’ intentions. The jury may not limit their analysis to the facts presented at trial and instead fill in any gaps with their own reasoning. Part of being human is trying to understand or justify an action based on who you are or what you know to be true. A litigator’s job is to give that compelling narrative.
Who are your heroes?
The everyday people you don’t see but who are instrumental in supporting the leaders and innovators you do see and revere.
What’s the perfect day for you in Seattle? What do you do, where do you eat, what do you see?
A perfect day in Seattle would be spending time outside (forests, water, and mountains, oh my!), talking and laughing with dear friends and family, and eating food made by someone really passionate about cooking it.
What’s your motto?
Be open and curious, especially when you think you are right or even afraid. You may be surprised at what you learn.
Do you work for a public services agency and would like to apply for a NITA scholarship? Check out our scholarship information here. We’d love to support you in your commitment to public service.
Written by guest blogger Judge McGahey
Finding a Christmas movie that has tie-ins with the law is no easy task. I mean, after Miracle on 34th Street, there’s not a lot to choose from. But after wracking my brain this weekend, I remembered one. And yes, the title of this review describes the plot!
The film is 1940’s Remember the Night, starring Fred MacMurray and Barbara Stanwyck and written by a man who would go on to direct some of the great screwball comedies, Preston Sturges. Although this movie’s plot will sound like every Christmas movie on Lifetime, I assure you that Remember the Night is much, much better than that!
MacMurray plays Jack Sargent, an assistant District Attorney in New York City, assigned to prosecute Lee Leander (Stanwyck) who’s accused of shoplifting a bracelet. Trial begins just before Christmas, and the ambitious Jack worries that he won’t be able to get a conviction from a jury full of the Christmas spirit. By use of some procedural manipulation, he gets the case continued until after the New Year, which means Lee will spend Christmas in jail. Bothered by this, Jack arranges for her to be bailed out, but through a series of misunderstandings, Lee ends up in Jack’s apartment, just as Jack is setting out to drive home to Indiana for Christmas with his family. It turns out that Lee is also from Indiana (what a coincidence!) so Jack offers to drive Lee to her mother’s house and drop her off.
After misadventures in Pennsylvania that involve trespass, a nasty justice of the peace and a flaming wastebasket, Jack gets Lee to her mother’s house – where mom very quickly kicks Lee out. Not surprisingly, Jack ends up taking Lee to his family Christmas and also not surprisingly, Jack and Lee fall in love. (Work with me here: it’s a Hollywood movie from 1940 – and it’s about Christmas!)
After the holiday, the two head back to the city, although Jack offers to help Lee jump bail in Canada; she refuses. When they get back to New York, the trial resumes, but the result is not what you might expect, given the frothy nature of the movie. Even though it’ll surprise you, I think you’ll like it!
I know what you’re thinking: when will I ever be able to watch this movie? Well, I have good news for you! It’s going to be shown on TCM this Friday, December 18th, at 11:30 p.m. Eastern time, and again on January 13, at 11:45 Eastern time. See if you can fit it into you holiday schedule!
May every one of our NITA family have a holiday season full of every good thing you could want!
 These two would go on to star in one of the greatest of all films noir, Double Indemnity, directed by Billy Wilder and released in 1944. I’ll be reviewing it sometime in the New Year.
 This is a real-life phenomenon. Ever wonder why so few cases go to trial right before Christmas? Lawyers hate presenting cases to juries during this time of year.
 Contrary to opinion, not every movie I review is so obscure that you can’t find it anywhere!