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          Wednesday, January 25, 2017

          Zero Hour: Adjunct Prof John Mills represents Texas inmate Terry Edwards, set to be executed 1/26/17.

          “Is Texas About to Execute an Innocent Man?” asks Slate.
          Sample alt tag.
          Terry Edwards (in a photograph from the Dallas Morning News), who is sentenced to be executed for the shooting deaths of Tommy Walker, 34, and Mickell Goodwin, 26, during a robbery at a Subway restaurant.

          John Mills is an adjunct professor here at UC Hastings and Principal Attorney at the Phillips Black Project, a non-profit public interest law practice, where he represents death-sentenced prisoners and persons sentenced to die in prison for crimes committed as juveniles. He has achieved national headline status for working as counsel for Terry Edwards, who is presently on death row for his for his involvement in a 2002 robbery that left two people dead and is the subject of this Slate article: “Is Texas About to Execute an Innocent Man?” Mr. Edwards’ case is at the zero hour as he is set to be executed by the state of Texas on Thursday, January 26, 2017.

          We caught up with John to follow up on his experience teaching the Capital Punishment Seminar this semester at UC Hastings and the latest updates from the Terry Edwards case. – by Artie Venti, UC Hastings External Relations

          Thank you for taking the time in speaking with us. We know you have very time-sensitive matters that you're working on and we appreciate this.

          Thanks.

          We read the story in Slate about Terry Edwards. When did you first become involved with this case?

          I first became involved approximately seven months ago when some lawyers from Texas reached out to a colleague of mine, here at Phillips Black, and asked her to sign on to the case and we made a decision as an organization to get involved in his case. We were told that if we didn't get involved, it was unlikely that there was going to be anybody else doing work on his behalf leading up to his execution.

          Where do you start when approaching a case like this?

          When I start to investigate, the most important person to talk to is the client because the case is ultimately going to be about that person. Whether it's a case about the offense or a case about their upbringing, or a case about the trial, they're going to be the primary, or at least the first, witness to those events. So the client is the first source of information in my investigation.

          Many of these clients are death row inmates. Is it easy to get access to them?

          Just today we were talking to the prison about how hard it is to get access to Terry Edwards, even in the hours leading up to the execution. On Thursday, [January 26, 2017,] if the courts don't intervene, he'll be executed, and they'll only allow us to visit with him for an hour Thursday afternoon. This is the same hour that is set aside for visitation with any spiritual advisor. Access is a very real issue. There is an opportunity for legal calls and for legal visits, but it's a very inhumane process every step of the way.

          After you speak with the client and review the case file, what's the next step?

          We try to understand what might not add up, either from the defense’s or the state’s presentation at trial, and see what part of the story was untold. Was there an investigation that didn't happen that should have? Also, there's a lot of record gathering in these cases, like collecting the police files and the prosecutor's files, to understand how they undertook their investigation. This is critical to understanding how the story that they learned and pursued became the story that was presented to the jury.

          So once you find a defect in the investigation, then that’s it, your client is exonerated, right?

          Not really. A challenge in doing post-conviction work is the procedural hurdles in getting to the merits of any case. In the Terry Edwards case, the state courts and the federal courts had already weighed in. Unfortunately, in both of those venues Mr. Edwards' prior attorneys had done no investigation into the case. Mr. Edwards’ state habeas counsel literally just copy and pasted claims from another case and filed that as his habeas petition. This creates a particularly problematic issue, because the record in state court is the basis for bringing appeal into federal court. The state habeas is supposed to be the first opportunity to introduce new evidence that undermines the reliability of a conviction, and if there is no investigation, there's not going to be any new evidence.

          At this late stage, we have uncovered quite a bit of new evidence that undermines the reliability of Mr. Edwards’ conviction and are currently fighting to get the federal court to reopen his case, so that they can consider the new evidence. Our basis for this is saying that his state counsel copy and pasted claims, and his federal counsel abandoned him by taking a full time job elsewhere and ceasing engagement in Mr. Edwards' case. His prior counsel never conducted any investigation and there were significant decisions from the US Supreme Court that would have provided avenues to present new evidence, had prior counsel been engaged in the case. Since the record that was before the state court was the one in front of the federal court, a predictably negative result was obtained in both places. We're in the unfortunate position of having to ask the courts to start the appeal over, so that he can have a full and fair opportunity to present his claims in the first instance.

          So now it's a waiting game for Terry Edwards?

          Well, we heard today from the Texas Court of Criminal Appeals, which is why I'm a little bit busier now than when we were in touch early today, and they denied our request to re-open the case. Now we're waiting to hear from the Fifth Circuit Court of Appeals, a court that's not well known for granting relief in death penalty cases. In fact, it's well known for denying relief in death penalty cases. It's a waiting game, and it is a very difficult spot for Mr. Edwards to be in.

          Everything is so time sensitive and Mr. Edwards is essentially working on borrowed time.

          That's fair to say. We absolutely have to be aware of timing. One of the questions that the court will ask us when we come in and ask for them to stop the execution is, "Why did you delay?" We want there to be as little time from one to the next. We also want the decisions to be well reasoned. We're within 48 hours at this point, and so there's not a lot of time.

          It seems the big problem with the death penalty is a fairness issue. With Terry Edwards, he may have committed a crime, but he’s not the guy who pulled the trigger, yet he is going to be executed and the man who actually killed those people is not.

          That is certainly a major problem with Terry Edwards' case. It highlights a problem inherent to the death penalty, which is how to sort out the worst of the worst, and it’s a problem that will plague the death penalty for as long as it's a policy that we retain. For a long time, fairness and an inability to identify the most culpable was probably the motivating factor for me and my work on the death penalty. An inability for states to even provide the most basic of protections, like not convicting and sentencing to death innocent people or not sentencing the intellectually disabled to death. Those should be baseline categorical exceptions to the death penalty. You're not supposed to sentence them to death. That continues to animate my work.

          I am frequently troubled by the role that poverty, racism, and serious mental health issues play in deciding who receives the death penalty. Having been involved now in some execution stage litigation and having to receive, ultimately, worst news imaginable, it really highlights the inhumanity and lack of necessity for the death penalty. The idea that we're going to take a person and render them helpless by strapping them to a gurney, and then killing them is morally wrong. It's something I don't think I fully appreciated until I litigated cases at that stage.

          What can we hope for Terry Edwards?

          We can hope that the Fifth Circuit will see the injustices in his case and allow the lower courts to re-open the case and review the merits. 

          What about a last minute reprieve from the governor?

          I've never had a client receive clemency or have significant hope of receiving clemency. I don’t think Texas has ever granted clemency to a death row inmate and it’s the same in other states. In Missouri, where we've done the most work around executions, the governor was formerly a death penalty prosecutor and is not one known for showing mercy.

          How did you first get started in death sentence cases and post-conviction cases?

          I went to law school thinking I might be interested in working as a public defender. Fortunately, my law school had a capital punishment clinic and it was in the context of that clinic that I was exposed to the kind of investigation that goes into a capital case. Namely, an investigation into anything that might make the client worthy of mercy and the kinds of fundamental questions about culpability, morality, and humanity that go into sentencing decisions in capital cases. The stories that are at the heart of those decisions, or at least should be at the heart of those decisions, are very compelling. I was hooked based upon my time in the clinic and was fortunate enough to work in this area immediately out of law school. I started at the Habeas Corpus Resource Center here in San Francisco and have been doing this kind of work ever since.

          Now at Phillips Black, do you focus predominantly on post-conviction work?

          Almost exclusively. Yes.

          With a focus on death penalty cases, is there a lot of work in other states? I don't think California's had an execution in over a decade.

          That's correct. At Phillips Black we try to focus on not just extreme punishment, so we do focus on the death penalty and life without parole, but we more broadly are interested in highlighting the greatest excesses of the criminal justice system. We have a handful of cases out of Maricopa County, Arizona, where the head prosecutor for a time period charged virtually every homicide as a death eligible case. This had the effect of overwhelming the Criminal Defense Bar and the Capital Defense Bar, as well as the judicial system as a whole. It also lowered the standard of practice among defense attorneys there because they were overwhelmed by the number of cases they were having to litigate.

          We also have done a lot of work in Missouri, which is a place that not many people associate with the death penalty, but in 2014 and 15 they executed, in absolute terms, nearly the same number of people as Texas. Unlike Texas, there's not a number of large non-profits and the Capital Defense Bar, which was used to addressing an execution case a couple of times a year at most, instead went to once every month. The pace was so fast that the Department of Corrections actually requested and obtained a rule from the Missouri Supreme Court that they would not order more than one execution per month. Even the Department of Corrections in Missouri was overwhelmed by what was happening.

          We've done work in Georgia, and Alabama, Texas obviously, for Terry Edwards, places where there are some real questions about the way in which capital punishment is meted out and places that have demonstrated a commitment to imposing the sentences, despite serious questions about their reliability.

          What brought you here to UC Hastings?

          I had involved students as volunteers in a number of my cases over the years and have always found their energy and insights in the cases valuable. They allowed me to do litigation at a higher level and allowed me to do cases that I otherwise wouldn't have been able to do. I thought it would be nice to not only get involved in student life at my office, but back in the classroom as well. A friend of mine, who is a UC Hastings alum, broached the topic of teaching capital punishment and the Constitution and UC Hastings offered to have me teach the course.

          How long have you been teaching at UC Hastings?

          This is my first year.

          How do you balance your duties as a practicing attorney and a professor?

          Well, I'm still learning how. It is the practice of law I suppose, but I try to bring to the classroom a very practical perspective on the cases that we're discussing, and talk about what it means to investigate the cases, and to do the kind of work necessary to establish the precedence that we're examining, and try to deconstruct what led up to the particular court's decision in a way that'll help the students understand, not just the end result, but the way the sausage is made. One way I balance it is I try to borrow heavily from my experience as a practitioner in my instruction, but the academic calendar is very predictable, and the litigation calendar is very unpredictable, and so it can be challenging at times.

          So your cases are a great teaching tool?

          Unquestionably. Yeah.

          Have you spotted any future post-conviction attorneys in the class you teach at UC Hastings?

          I hope that all the students in my class will come to appreciate the significance of post-conviction review. It's an opportunity to prove important claims for Constitutional relief, but it is not an area of law that's very widely practiced, particularly outside of the context of the death penalty. I'm glad that UC Hastings is offering this class and there seems to be a fair amount of enthusiasm among the students for this subject. In terms of thinking about who would be a good practitioner in this area of law, the most important qualification is passion for the subject matter, and particularly a passion for advocacy on behalf of individuals. I certainly see that in the students at UC Hastings.

          We're lucky to have you here at UC Hastings. I don’t know how you do it, but keep on doing it. Thank you, professor.

          ####

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