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August 5, 2009 6:13 PM

Are Third-Years Ready to Try Felony Cases?

Posted by Zach Lowe

There's a growing consensus that third-year law students are ready to handle felony criminal matters, provided they have the proper supervision.

This week Ohio became the forty-second state to allow 3Ls to handle more than misdemeanors, changing course after a long campaign led by the Indigent Defense Clinic at the Ohio Justice & Policy Center, a nonprofit that partners with several area law schools. 

The clinic has long argued that the students are ready and that overburdened public defenders and prosecutors need the help--especially during a deep recession. The Ohio Supreme Court changed the rule over the weekend, leaving just eight states, including New York, in the dwindling minority that limit student involvement to misdemeanors.

The new rule requires 3Ls handling felony cases to have some affiliation with a law school clinic or similar nonprofit. It also requires that experienced lawyers supervise the students, up to the point of sitting at the trial table if a third-year is questioning a witness.

Elizabeth Gillespie, who graduated last year from one of the law schools linked with the Ohio Justice & Policy Center (the Salmon P. Chase College of Law at Northern Kentucky University), laments the fact that for her, the change came one year too late.

"It's very disappointing," says Gillespie, now in private practice as a criminal attorney. "When people say felony cases are more complicated than misdemeanors, that's a myth. To the defendant it's just as serious to be charged with domestic violence as it is to be charged with trafficking cocaine."

Amanda Smith, a rising 3L at the University of Cincinnati College of Law, is excited to work on felony cases next year. After her summer associateship at Jones Day, Smith will enroll in a ten-day boot camp with the Indigent Defense Clinic to help prepare her for handling criminal cases. (The clinic continues to educate a select group of students, including Smith, throughout the academic year).

"It's scary, because when you work on felonies, you're looking at more prison time," Smith says. "But it's an amazing opportunity for students that we wouldn't get otherwise."

Not everyone was on board with the change. A few local lawyers argued it would lead to lower quality defense for indigent criminals, and at least one major area law school backed off supporting the change because of the extra responsibility it would place on students.

"We were comfortable with the existing rule," says Steven Huefner, an associate professor at the Moritz College of Law at Ohio State University and director of the school's legal clinics. "We feel we can provide students with as much experience as they'd get in a felony case without the stress or higher stakes."

(It should be noted that Moritz College of Law didn't actively oppose the bill. One of Huefner's colleagues, Ric Simmons, disputed the idea that felonies are substantially different from misdemeanors in this story in the Cleveland Plain-Dealer, though he also told the paper he is unsure if Moritz will allow third-years to work on felony cases.)

That's unfortunate, considering students are "chomping at the bit to handle these cases," says Janet Moore, a senior staff attorney at the Ohio Justice & Policy Center. "Law schools do a great job teaching theory, but too often students are doing their practical learning after they graduate and join public defender offices."

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Utilizing third-year students to assist the criminal justice system by prosecuting and defending felonies may seem novel in Ohio (recognizing that 41 other states have previously sanctioned the practice), but in Florida 3Ls have been doing that for more than 20 years. At the University of Miami School of Law, students who have completed the Litigation Skills Program (a 6-credit package of both trial and pretrial skills taught by South Florida's leading practicing lawyers and judges) are enrolled in a supervised externship at both the offices of the State Attorney (prosecutor) and the Public Defender. Under the tutelage of both professors at the law school and lawyers at those offices, students appear in court and conduct pretrial activities in felonies and non-felonies, including juvenile proceedings. Professional responsibility and ethics are both part of the coursework and the supervision, and the end result is a criminal justice system which is efficient, cost-effective and socially responsible, while ensuring that the rights of the individual defendants, victims, witnesses and the state are preserved. A model for many other law school courses, the UM Litigation Skills Program has been compared to the apprenticeship experiences utilized in many other countries and now championed by the world's largest law firms. Without this experience, law students become lawyers without skills necessary to further the cause of justice. Would we want a medical professional to treat us who has never examined a patient as part of a supervised teaching experience?

Law students are not even remotely ready to handle felony cases. It may be a great educational experience for the student, but it seriously deprives the defendant of the right to be represented by competent legal counsel. You won't find many criminal defense lawyers supporting this idea, but I'll bet the prosecutors love all the convictions they can rack up this way.

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