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When Seth Waxman argued before the U.S. Supreme Court that juveniles should never be executed, at his counsel table were a solo practitioner from Missouri and two colleagues from his high-powered firm. In March, the court agreed with his team. Roper v. Simmons, 543 U.S. 551. The swing vote in the 5-4 decision was Justice Anthony M. Kennedy, who wrote the majority opinion. Just 16 years earlier, he and four colleagues had held that it was acceptable to execute those who had reached their 16th birthday. Stanford v. Kentucky, 492 U.S. 361 (1989). Now the majority found that standards of decency had evolved since then, and a national and international consensus existed against executing children. Led by Waxman, the Wilmer Cutler Pickering Hale and Dorr pro bono team included Washington office firm partner David Ogden and associate Danielle Spinelli. The team also included Jennifer Herndon, a St. Louis solo practitioner whose specialty is capital cases. The show me state Herndon, also a professor at Saint Louis University School of Law, had been appointed to represent Christopher Simmons after he had lost state appeals of his conviction for robbery and murder. She unsuccessfully took him through the federal post-conviction process, and then launched a pro bono collateral attack on his conviction in the Missouri Supreme Court. She alleged that the execution of someone who was under 18 when she or he committed a crime was cruel and unusual punishment under both the Missouri and the U.S. constitutions. She argued that in 2002-after the Missouri courts had affirmed Simmons’ conviction-the U.S. high court had decided Atkins v. Virginia, 536 U.S. 304, which forbade the execution of the mentally retarded because they were not culpable. She noted that in 18 of the 38 states that had the death penalty, it didn’t apply to juveniles, and that it was infrequently applied in the other 20 states. Furthermore, of the six other countries that had executed children since 1990, all had since disavowed the practice. “The arguments were obvious,” said Herndon. The Missouri court agreed and set aside the death sentence; the state appealed to the U.S. Supreme Court. Herndon got more than 50 calls from firms that wanted to participate in the case. She turned for advice to George Kendall, formerly of the NAACP Legal Defense and Education Fund and now a Holland & Knight pro bono lawyer. He helped her narrow the field to three Washington firms before she settled on WilmerHale.

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