Appellate Litigation Clinic Wins Two Prisoners’ Rights Cases

July 29, 2015 —

As students in the Appellate Litigation Clinic last year, Emily Merki (L’15) and Ryan Sellinger (L’16) had to flip a coin to determine who would be the one to argue Incumaa v. Stirling in the U.S. Court of Appeals for the 4th Circuit. Merki won the toss, but Sellinger worked just as hard as the pair practiced numerous moots of the argument Merki presented on March 24. And together they drafted numerous versions of the briefs under the guidance of Professor Steven H. Goldblatt (L’70) and clinic fellow Ruthanne Deutsch (L’04, LL.M.’19). 

 In the end, the hard work paid off. The 4th Circuit held July 1 that the conditions of Incumaa’s 20 years of solitary confinement in a South Carolina prison implicated his procedural due process rights. The case now returns to federal district court in South Carolina to determine whether the Department of Corrections’ process for determining the release of those in solitary confinement actually meets with minimum due process requirements. 

 The 4th Circuit’s opinion partially reverses an earlier decision by the district court favoring the state’s Department of Corrections. “It’s been the best kind of victory, and for Ryan and I, our first victory,” Merki says. “It was really satisfying to see the court take the case in the exact direction we wanted it to go.”

The goal, according to Sellinger, was to get the best result possible for the client. Though Incumaa has been infraction free for two decades, he has been, among other things, subjected to strip searches and body cavity searches and confined to his solitary cell the vast majority of that time. 

Goldblatt and Deutsch say the win has national significance since it has historically been very difficult for prisoners to challenge the conditions of their confinement in court. The clinic was assigned the case by the 4th Circuit at the appellate level, since Incumaa had previously been representing himself. “Mr. Incumaa has been in solitary confinement for 20 years under conditions that are awful and [which] raise fundamental humanitarian concerns that anybody, regardless of what they did, can be treated this way,” Goldblatt says. “Hopefully this will lead to better decisions by the federal courts on constitutional protections against this type of incarceration.”

Prisoners’ rights

If Incumaa wasn’t enough of a reason to celebrate, the clinic won another prisoner’s rights case in the Fourth Circuit on July 9. Elizabeth Purcell (L’15) and Clay Greenberg (L’15) helped clinic Fellow Lola Kingo (LL.M.'18) prepare for oral arguments in Jehovah v. Clarke on May 12 and also drafted the supplemental and reply brief. And in this case, the briefs definitely helped to win the day. “It was exciting to think of yourself as going up against a state agency — and then seeing the 4th Circuit agree with you,” Greenberg says.

 In Jehovah, the 4th Circuit revived a suit by an inmate of the Virginia Department of Corrections claiming violations of the Religious Land Use and Institutionalized Persons Act and the U.S. Constitution for prohibiting him from consuming communion wine, requiring him to work on Sabbath days, assigning him non-Christian cellmates and demonstrating deliberate indifference to his medical needs. The July 9th opinion reverses a lower court decision that favored Virginia’s Department of Correction.

For Purcell and Greenberg, it was welcome news to win in the 4th Circuit as they study for the bar and head off to law firms this fall.  “Liz and Clay really functioned as associates and valuable team members,” Kingo says. They helped make the briefs and the arguments that much better because of their dedication to the client and to the clinic.”

And both wins, Goldblatt says, represent Georgetown Law clinical legal education at its finest. “You are not only giving the student an experience in a real situation, you are giving an experience where they actually have been able to effect the law — not only to the benefit of their client, but to the benefit of the law.”

To read coverage in the National Law Journal, click here.

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