Texas A&M University Law School

Friday, September 01 2017

by Andrew Marton

Two years ago, Caitlyn Ashley, a third-year law student at Texas A&M University’s School of Law, was poised to interview for an internship position in the Tarrant County Judicial Staff Counsel’s office and was chatting with that office’s secretary when Mike Ware, Executive Director of the Innocence Project of Texas walked in.
Ashley was unaware that Ware was the main force behind an Innocence Clinic offered at A&M’s law school. But the Judicial Staff Counsel’s office manager not only informed Ashley of Ware’s position at the law school but “she told me in no uncertain terms that I should take any class he teaches because he’s a really good lawyer,” said Ashley with a clarity of someone who recalls a turning point in her law school life.

And sure enough, Ashley proceeded to do some careful follow-up, researching every class Ware taught at A&M. She would eventually enroll in Ware’s Innocence Clinic – and finding it so fulfilling, she is currently in her second semester of the Clinic and already knows she will finish up her last semester at A&M with a third Innocence Clinic session.

The Innocence Project’s Clinic at the Texas A&M University School of Law, in Fort Worth, has been a formal program since the fall of 2014. It is currently available for credit to law students beginning in their second year, and is graded strictly on a pass-fail basis. Each student is required to log approximately 130 hours of clinic or associated work per semester in order to earn a “pass” for the course. In the fall semester of 2017, there were six students enrolled.

Texas A&M University School of Law, located not far from Fort Worth’s iconic Water Gardens, has scaled the national rankings to now be rated in the top 100. It offers a total of ten different clinics on everything from immigrant rights, low income tax, to two intellectual property clinics, with the Innocence Project’s Clinic essentially outsourcing its management to the Innocence Project of Texas, whose Executive Director, Mike Ware, teaches A&M’s Clinic.

Mike Ware

Mike Ware

 Luz Herrera is Texas A&M University School of Law’s Associate Dean for Experiential Education. She feels that some of the key skills that the Innocence Project’s Clinic imparts to its students include fact investigation, empathy, appellate advocacy, and research writing.

“What is very important is that the students are getting training in being vigilant about individuals rights, especially when dealing with law enforcement and the overall criminal justice system,” says Herrera. “And they realize that, sometimes, well-meaning people can make wrong decisions, and that even following the process doesn’t always ensure justice.

“Honestly,” continues Herrera. “I think the most important thing these Clinic students learn is to see incarcerated individuals as human beings who have communities and families that love them.”

Indeed, Herrera believes that those students participating in the Clinic are more prepared to deal with individuals, and not just with the reading and the writing of the law. “It’s that interacting with people involved in the legal system – from the client to witnesses to experts -- there really is no substitute for that, nor is it something you can simulate to get all of the nuances of the attorney-client relationship. I believe that direct client representation is a capstone experience that every student needs to have before they graduate from law school,” says Herrera.

Liz Herrera

Liz Herrera

Because the Clinic is taught by Innocence Project of Texas’ Executive Director, Mike Ware – whose defense attorney practice is also based in Fort Worth and who also carries the Texas A&M title of adjunct professor -- the Innocence Project’s Clinic at A&M is reasonably considered to be an offshoot of the Innocence Project of Texas, with the latter often providing numerous cases (initial paperwork, approaches by prisoners looking for help) to the Clinic for their first vetting.

“I saw that at A&M there were a bunch of dedicated, idealistic students interested in innocence work,” says Ware. “I believed we could be more effective in both teaching the students and actually doing the work if we transformed what was a loose student organization into a formal ‘clinic.’”

Ware made sure the Innocence Clinic was structured around a small number of students – no more than six-to-eight per semester – attending a once-a-week class for two hours. Each student is assigned a case of a Texas inmate who has been convicted of a criminal offense and imprisoned for a crime, for which they claim they are innocent. Texas, in fact, leads the nation in the number of exonerated men and women who have proven their innocence after being wrongfully convicted. The cases assigned to the students are generally at least four years old, after the inmate has exhausted his or her direct appeals. They are indigent and they no longer have lawyers. The students pour through trial transcripts, police reports, witness statements, and other materials provided to them by the Innocence Project of Texas as part of their case review.

“We’ll then discuss the case,” says Ware. “Each student will discuss their case, what their review of the documents and other materials provided to them has turned up. We’ll also discuss what the investigations have turned up before discussing the next steps to take, what legal relief may be available, is this case appropriate for litigation, or which cases should be closed. These are not academic cases but they are real and contain real pedagogical value for the class.”

Another key part of Ware’s Innocence Clinic is the prison visit where his students get an opportunity to interview an inmate, often considered the best if not the only way to learn a convicted defendant’s version of the facts.

Although, at this stage, there is no formal attorney-client relationship, the inmate signs a release and a waiver, and the students sign confidentiality agreements, with the confidentiality of the interviews protected under the Texas State Bar Rules of Ethics.

As for the actual prison visit that Ware conducts with the clinic: “I’ve been in every Texas prison at one time or another,” he says. “Probably 100s of times altogether, but to these students, it is their first time they’ve been to a Texas correctional facility, much less a maximum-security prison so that in and of itself is a big deal for them. It is so important for them to see how it is set up, how the inmates are treated, how they deal with guards.

“And then for the students to actually meet the inmate with whom they’ve been corresponding by mail, whose family member they might have met, whose trial transcript they have read” continues Ware. “It is just very eye opening to meet and talk with this person, and put an actual human being to all the facts they have accumulated.”

Ware takes no time in pointing out the one most important objective he wants his class to attain when doing the prison interview: “Establish trust with the inmate,” Ware says. “He or she needs to be comfortable in candidly telling their story.  A doctor takes a patient’s ‘history’ and relies to some extent on that patient’s self-disclosures in formulating a diagnosis and treatment plan. It is very similar to an inmate claiming innocence. But, just as a doctor does not rely exclusively on a patient for information, we don’t rely exclusively on the inmate.”

Ware makes sure his students understand that there are numerous main objectives of a prison interview with a potential Innocence Project of Texas client. He underscores how essential it is for the students to allow the inmate to almost dominate the conversation, as the students learn from the inmate about certain key aspects of the investigation.

“If we get to the point of talking to the inmate in prison,” says Ware, “The students need to know that we are at that point taking a long and serious look at this case. By that point, the inmate also has it in his or her own mind what they want to learn from the student as well, while the student wants to double check certain facts – from a police report or trial transcript -- that might be in dispute. The students need to clarify why they should give weight to the prisoner’s particular version of the facts in dispute.”

Ware cannot stress enough the importance of meeting in person the particular prisoner-as-client whose innocence his students are trying to prove.

“The students need to see that most of the inmates are indigent and they claim they are innocent and maybe they are, but that does not necessarily mean they are either beautiful or charismatic. My students have seen that, say, in the case of Amanda Knox, or the San Antonio Four, you can be beautiful and charismatic, and still not get a fair shake. However, many times the very reason an innocent person is convicted is because they are neither beautiful nor charismatic. Most of the inmates we work with have spent a lifetime of not getting a fair shake. So, it is very important to give those individuals, who claim innocence and maybe are, as much time as someone who might actually be more attractive or likeable.”

Ware lectures his students in the Clinic to pay attention to the basics of the narrative offered by the inmate.

“It often will boil down to whether the inmates’ version makes sense,” says Ware. “But, often times, there are those who have no idea what happened in the case because they were nowhere near it and only became a suspect months later. They tell their attorney that they can’t help it if some poor victim picked their picture out of a photo spread. It may not even be clear why the police decided to include them in a photo spread to begin with.”

What Ware tries to impart to his Innocence Clinic students is to listen carefully to how the inmate presents his or her case. If the person appears to be “telling a logical and reasonable story,” says Ware, “Or all they are doing is saying what liars the witnesses against them are – all that is fine – but it still doesn’t mean they didn’t do it. What I look for is an alternative narrative of innocence that we can corroborate through independent evidence. And if I see a prosecutor stretching and reaching to pull something ‘off the wall’ out of nowhere to explain theories that simply don’t make sense, and my defendant has a narrative version on motivation, for example, that makes much more sense, that is something I will always look for.”

Ware doesn’t underplay the importance of his students becoming acclimated to the “microcosm that a prison unit is,” Ware describes.  “It’s important for the students to get familiar with different prisons bearing different personalities. Some guards can be particularly rude and the students need to be prepared for that. And in other places, the guards are very professional.”

Highly useful guest speakers who regularly make an appearance in Ware’s Innocence Clinic class are a defendant’s family member, inmates who have been exonerated, and forensic science experts who make presentations about how to interpret DNA evidence and, most importantly, what it can and can’t do, what it’s strengths and shortcomings are, in a courtroom.

“For all the forensic fingerprint science out there, so much of what we do as lawyers in reinvestigating old cases is record search,” says Ware. “It is finding witnesses when the last time anyone ever heard from them was ten years ago. What I find striking is what today’s students are so strong on is that I can be talking about a case and its trial transcript, or a witness that we ought to find, and the words are barely out of my mouth when my students have already located the witnesses Facebook page. Today’s students in my clinic are so skilled at the whole social media research – often times being way ahead of me when it comes to tracking down witnesses, where they are and what they are doing. My students are doing it in real time, while I’m talking to them.”

If Ware can, he involves his students in a currently ongoing, in-litigation, case, that injects his Clinic with real life, tangible courtroom drama, and raises the stakes on what the students are working towards.

Recently, Ware’s students have been involved with the George Powell case that as of December, 2017 was in active litigation in Bell County, Texas. The Powell case, according to Ware, involves many of the classic aspects of a wrongful conviction including a mistaken eye witness identification, bad forensic science, serious prosecutorial misconduct, and a key state’s witness (a “jailhouse snitch”) who now admits he perjured himself for the state so that he could get a favorable plea bargain.
Ware’s A&M Clinic students began chipping away at this case a couple of years ago, with it easily going on past the course’s semester-long duration, and extending into three more class semesters. Not only have Ware’s students used the Powell case to familiarize themselves with the trial transcripts, but they have intensively familiarized themselves with the report from the Texas Forensic Science Commission which “shows that the state’s expert at the trial was completely unqualified to testify and reached the wrong conclusions as he contributed to this wrongful conviction,” says Ware.

“Meanwhile, the class saw the report from Grant Fredericks, a forensic video analyst and saw what good forensic science can do by excluding a wrongfully convicted man from having been the perpetrator of the particular offense. It was very useful to show the class that forensic video analysis can be used to exclude a suspect in the right case – and that it doesn’t have to happen just through DNA or fingerprints. It really was quite straightforward: Our client, George Powell is 6’3” while the perpetrator as seen in the video of the robbery is no taller than 5’9”. So, it simply can’t be George Powell.”

Ware, after amassing that amount of exculpatory evidence on behalf of Powell, does draw a very scathing conclusion: “My students, in this case,” Ware says. “Are seeing a D.A.’s office that appears willing to say and do anything to first win a conviction and second to avoid admitting making a mistake and convict a completely innocent man. The district attorney’s behavior in this case is not only unethical, it allows the actual perpetrator to remain free and commit additional crimes, jeopardizing the safety of the public.”

Ware is quick to point out that many district attorneys’ offices do take their ethical duties very seriously. Through Ware’s tutelage, his A&M Innocence Clinic students get to work with the various conviction integrity units attached to such D.A.’s offices in Dallas, Tarrant, and Harris counties among others. Those units, unlike the D.A.’s office in Powell’s case, have been extremely open to inquiries about a possible wrongful conviction made by Innocence groups such as A&M’s Innocence Clinic students.

“What that means is that often times my students can avoid any contentious dealings with local D.A.’s offices,” adds Ware. “The conviction integrity units want to get to the truth so working with them becomes a cooperative search for the truth so I try to make sure my encounters with them include my students. What helps in our relationship is that they see firsthand that we have no interest in getting the guilty exonerated, only the innocent.”

When Ware discusses how his students will have to eventually deal with a prosecutor or D.A.’s office, he reminds them of what the prosecutors’ ethical duties are and that “unfortunately, a few prosecutor’s offices completely disregard those duties,” Ware says.

Indeed, Ware feels obliged to remind his Innocence Clinic students that the Office of District Attorney is highly political and some of them will do whatever it takes to be re-elected – as their only bottom line.

“Of course, there are many counties where prosecutors take their ethical responsibilities seriously,” says Ware. “And where they are not just interested in avoiding an admission of a mistake. Again, in the current case involving George Powell, it’s now most troubling aspect is that the local D.A.’s office seems completely unconcerned about the public safety, which is their ultimate job. If they were concerned about the public’s safety, that would mean they would want to identify and arrest the real perpetrator of the crime instead of trying to defend and cover-up the obvious mistakes they made.”

As for how Ware would describe the typical student who signs up for his Innocence Clinic, he immediately applies the adjective, “idealistic.”
“Some of them don’t have any intention of doing this kind of work, while some of them want to be criminal defense lawyers, while others want to be prosecutors,” says Ware. “For sure, they are all good people and they probably want to see what mistakes prosecutors or the police can make in possibly convicting the wrong people, which is always fascinating.”

Still, Ware is pragmatic about what path he sees most of his students taking after they leave his clinic. He isn’t optimistic that most of them will immediately go into full-time innocence work, especially if they set up a private practice. Full-time innocence work is highly specialized and truly only available to those who concentrate on it as a full-time, staff counsel for a particular organization, such as the Innocence Project of Texas.

“Let’s be real: If you are in private practice, you are relying on the free market to support you,” says Ware. “You have to pay rent, you have to keep the lights on. Pro bono work can be very satisfying but there are precious few wrongfully convicted, innocent people who can afford to pay an attorney’s fee that will allow the attorney to keep his lights on. Nonetheless, I foresee around half of my students will go into criminal defense and make that a significant part of their practice.”