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In a move that critics charge is an effort to hamper the lawyers who defend death penalty cases, the Louisiana Supreme Court is refusing to let visiting foreign lawyers take the bar examination. In June, the court reversed what had been a 20-year long practice of permitting non-immigrant aliens — those who have the right to live and work in the United States but aren’t planning to live here permanently — to take the bar and practice there. The change makes Louisiana unique among the states in that respect. “We’ve never been the world’s most popular people,” says Clive Stafford Smith, a prominent New Orleans death penalty defender who is English-born and a licensed attorney in New Orleans. However, he says, the court’s decision contributes to an atmosphere that “is getting really hostile to people defending indigent folks on death row.” The court’s decision came after Australian lawyer Richard Bourke, who came to New Orleans a year ago to work with the Louisiana Crisis Assistance Center, a public-interest office that does defense trial work in capital cases, was denied permission to take the bar. TARGETING LAWYERS? While death penalty opponents are cautious about publicly accusing the court of targeting them, another Louisiana lawyer who is a member of the state Bar and involved in a lawyer-exchange program with French lawyers, is more blunt. In a writ to the U.S. Supreme Court seeking a reversal of a state supreme court ruling, Louis Koerner Jr., in effect, accuses the state of targeting the crisis assistance center and its director, Clive Stafford Smith. His case deals with his own law firm, which invites French-speaking lawyers to New Orleans for stints of several months or more at a time. “As may be seen from the following selection of cases handled by Clive Stafford Smith,” Koerner wrote, “his work and that of his associates have been devastatingly effective in the Supreme Court of Louisiana. It seems apparent that this court was willing to reverse its own prior jurisprudence in order to prevent volunteer attorneys, such as Mr. Bourke, from becoming licensed in Louisiana and that petitioners were simply caught in the crossfire.” The crisis assistance center’s primary focus is on litigating capital cases at the trial level in order to prevent a death sentence. It sometimes pursues appeals, however. In two recent cases handled by the office, the state supreme court reversed and remanded the death sentences of two men. State v. Harris, 820 So. 2d 471 (2002) and State v. Jacobs Jr., 789 So. 2d 1280 (2001). The decision not to permit the foreign lawyers to take the bar was initially made by the Louisiana Supreme Court’s Committee on Bar Admission, which simultaneously notified Bourke and the court of its decision. Harry “Skip” Philips Jr., director of character and fitness for the admission committee, strenuously denies that the decision was related to the death penalty community. “That particular perception is not based on facts,” says Philips. The supreme court’s information officer refused to comment on the decision, saying that the court’s opinions speak for themselves. Bourke, an Australian criminal defense attorney with more than 10 years of experience, was granted an H-1B visa, which permits him to work in this country, but was denied permission to sit for the bar in February 2002. He petitioned the state supreme court, arguing that the new interpretation of the rule violated the supremacy clause and his rights to equal protection and due process. In a per curiam opinion, the court denied his petition because he was not a resident alien — a permanent resident of this country. The court relied on its Rule XVII 3(B), which was passed after the U.S. Supreme Court decided in 1973 that non-citizens could take the bar and practice law in the U.S. In re Griffiths, 413 U.S. 717. Louisiana, along with about a dozen states, was required to change its rules to permit immigrants to practice. Shortly after Bourke was denied, several attorneys brought over by Koerner to work for a time in his practice (which emphasizes complex tort litigation) were also refused permission to take the bar. Six months later, two Swiss law students, completing their master’s degrees in law at Tulane University were also denied permission. The law school’s dean, Lawrence Ponoroff, says he was surprised by the decision because Bar-admission officials had assured the two Swiss students that they could take the bar last summer. The court subsequently refused their request for a waiver. “Clearly this was a change in what the understanding had been,” Ponoroff says. The court has considered cases in the past where foreigners were denied permission to take the bar and interpreted the rule to allow those lawfully residing in Louisiana to take the bar whether they were planning on making the state their permanent home or not. In fact, in 1984, Stafford Smith’s petition was considered and he was permitted to take the bar. The court’s recent interpretation and rejection of its old case law had one dissenter — Chief Justice Pascal Calogero — the only member of the court who was on the bench when the rule was first promulgated. Citing a 1985 case, Calogero wrote, “I see no reason to overrule this prior jurisprudence.” In re: Application of Respondek, 422 So. 2d 435. Koerner’s petitions to the U.S. Supreme Court for certiorari failed, but both he and Bourke plan to file in federal court. Washington D.C.’s Covington & Burling has signed on pro bono to help Bourke with his case. While the supreme court’s decision appears to affect a number of groups, the biggest impact will be on the death penalty community. Although Koerner has a broad vision, so far his French exchange lawyers are only working in his office. And Tulane’s Dean Ponoroff downplays the effect on the school. Although the school is notifying newly admitted students that they can’t apply to take the Louisiana bar, Ponoroff says, most of their 60 or so foreign master’s degree graduates are more interested in taking the New York bar. “There are more than a dozen people on death row who don’t have lawyers. We have lawyers who want to do this work, who are being prevented, which is just wrong,” says Robin Maher of the American Bar Association’s Death Penalty Representation Project. No one has a count of the number of foreign lawyers doing death penalty work in Louisiana. A number are spread among different organizations and in small private practices. In the last couple of years, Stafford Smith has had two other foreign lawyers in his four-lawyer office. He currently has six foreign law interns. In 2001, more than 75 foreign legal interns, lawyers and law students came to the United States to work, mainly in the South, on death penalty cases. Koerner says it’s no secret that there is a lot of anger against the death penalty lawyers. “The fact that the prosecutors hate them and the supreme court hates them is tough,” he said. Last year, prosecutor John Sinquefield, first assistant district attorney in Baton Rouge, La., told The National Law Journal that foreign lawyers coming to the state to take death penalty cases should stay home. Although he had been unaware of the supreme court’s decision, he says, he was pleased by the news of it. “I don’t think any alien whatsoever should be a member of the Louisiana Bar,” he says. He says he hopes it puts a stop to “people who hop off an airplane and want to go into the courts. “They’re a group of people who, because they don’t believe in the death penalty, don’t want to follow anybody’s rules.” Like Koerner, Stafford Smith suspects that the new interpretation of the rule was personally directed at him. Bourke’s application came on the heels of another run-in that Stafford Smith and one of his center’s lawyers had with the admissions committee. Colorado lawyer Stephen Singer began working with the crisis assistance center in 1999, after he and his wife moved to New Orleans, where she had a one-year appointment at Tulane University School of Law. Unsure she would be reappointed, he was slow to take the Louisiana bar. He took on about six cases with the center and had a judge sign an order in every case saying it was permissible for him to act pro hac vici. ANGERING A JUDGE While waiting to take the bar, Singer says, he angered a judge because he filed a large number of motions in a case in 2001, and the judge had him removed for not being a Louisiana lawyer. The judge accused both him and Stafford Smith of unauthorized practice of law — an accusation that Singer reported to the Bar. Soon after Singer passed the bar, the admissions committee required an investigation by a disciplinary officer before admitting him. Singer says that he determined he had not violated any rules, but he was admitted to the bar on probation. The case against Stafford Smith was dismissed. “It certainly doesn’t make it any easier for us to attract qualified people to help with these problems if they’re all going to be threatened,” says Stafford Smith. He predicts that the change in rules will affect his ability to recruit lawyers to his office. The admissions committee’s Philips says that the suggestion of any connection between the two cases is “ludicrous.” Philips, who has handled two death penalty cases pro bono in the last four years, denies that the interpretation is targeting Stafford Smith or the death penalty community. “Whether or not any of the applicants who do not meet the requirement of Rule 17 had an intent to practice in death penalty or any other area is not something the committee is aware of or involved in when making a decision on an individual,” says Philips. Bourke disputes that. He says that in the course of seeking permission to take the bar, he provided documentation of his working with Stafford Smith, including a copy of his visa, on which was stamped the name of the crisis assistance center. Koerner sees the decision, which ultimately rests with the U.S. Supreme Court, as more broadly motivated. Last year, the Court upheld the right of judicial nominees to discuss their position on issues during campaigns. Republican Party of Minnesota v. White, No. 06-27-2002. Koerner believes the Louisiana Supreme Court has taken this action out of anger at Stafford Smith’s success because they’re worried about future judicial elections. “They think their political life is at stake,” he asserts. “Every case they have to reverse because of the prosecution is a nail in their coffin.”

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