We interviewed attorney Michael Ausbrook about his work on the Habeas Project at the Indiana Maurer School of Law, as well as law student Emma Kilbreath. They'll speak about the project, the cases they've tackled, and the impact their work has had on the lives of incarcerated defendants.
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[00:00:22] See what doing both means for energy nationwide at BP.com slash investing in America. murder. Habeas Corpus. This legal phrase comes to us from Latin. It means, you shall have the body. Wailing it down, it quite literally is a command to bring a detainee, specifically their body, to court. This legal recourse dates back to the medieval ages. Here in the United States, we have this concept passed down to us through English common
[00:01:43] law.
[00:01:44] It is included in Article 1 of boot camp, and then actually work on non-capital habeas cases. The habeas project has changed lives. It's helped people get released from prison, or get their sentences reduced. The students who've worked on the project have also gone on to some really impressive things with their legal careers.
[00:03:00] In today's episode, we were fortunate enough to get to speak with Michael, as well as Emma
[00:03:05] Kilbreath, a law student involved with the project. So got kind of tired of the state courts. So what I did was, there's a case from the United States Supreme Court that's called Harrington v. Richter, and it says that Federal habeas review is reserved for, and I think this is an actual quote, serious malfunctions of the state criminal justice system.
[00:05:44] So I said, okay, well, let's take that seriously.
[00:06:43] and they'd all done really hard work very often in capital cases over decades.
[00:06:46] And here was little old me getting the Gideon Award
[00:06:48] for basically an idea in three years of work,
[00:06:52] but it was a huge honor and incredibly grateful
[00:06:55] to them for that.
[00:06:56] But in 2013, a really brilliant student at IU,
[00:07:00] a guy named Prog Bayani said,
[00:07:02] somebody at the law school, if he was bored
[00:07:04] and that somebody knew me, the guy was Seth Long, model of criminal defense and we only do non-capital cases. The reason we do non-capital cases is that there's a ton of money in the world for capital defense. In habeas people sentence to death get lawyers, a whole community on more cases, we would. If we could take on more marginal cases, we would, but we are who we are and we have the resources we have. And, you know, there's a concept out there now, effective
[00:09:40] altruism. And I don't know that what we I think it makes a real difference, and Emma can speak to this probably better than I, but my idea as far as an educational enterprise was, there are all kinds of opportunities for students in law schools around the country.
[00:11:01] And here to take direct criminal appeals
[00:11:05] from the federal courts, the seven circuits always looking So it was like boot camp going through the class and then getting to actually work on cases. What about it excited you? I had never even heard of habeas before someone told me to take the habeas class and just a completely unique area of law. I know I think we're the only law school that does this probably.
[00:12:21] So just getting the opportunity to have a wonderful mystery storyline. This game will take you all around the world to unravel mysteries and sort out clues in classic 1920s lookals. It will sharpen your observational skills to boot as you have to pick out hidden objects out of each scene to advance. You play as June Parker, a whip smart headstrong sluth who
[00:13:43] can't seem to help getting embroiled in all matter of mysteries. It's like becoming the central talking about batting averages, but if you're doing work, I mean, you know, metrics are important. The national win rate in non-capital habeas cases is less than half a percent. So, one in 200,
[00:15:02] we win about half our cases. Judge Wood said to him, Chief Judge Wood said to him, I don't know whether you thought that Tooth Fairy was going to do this. And walking out of the argument, I knew I'd lost. I mean, and right. The Chief Judge of the Seventh Circuit had called the other-sized argument for postures.
[00:16:22] I knew we'd lost. What did that make our argument? have to have a state court opinion that does one of two things. It gets the law really really wrong and by really really wrong unreasonably wrong or it gets the facts unreasonably wrong because unless the state courts do one of those two
[00:17:41] things, the federal courts can't do anything about it. But the fact that the Once you're in the phase where you are doing the work and doing these cases, what does that look like for you in terms of tasks and experiences and whatnot? Obviously don't go into any detail on any cases you're working on, but just just in a macro sense for you and your classmates. It's definitely taught me that law is like a team sport.
[00:19:01] Do a lot of investigation. So looking at you know, crime scene photos,
[00:20:04] was almost entirely written by students.
[00:20:10] We actually roof read the petition on screen, in class,
[00:20:16] and then filed it electronically from class.
[00:20:20] A student argued the case in the Seventh Circuit,
[00:20:24] students were in on the briefing in the Seventh Circuit too.
[00:21:41] And as I've said, I give you an idea, I mean, the law students have more, they've done a lot, they know a lot, they're incredibly talented and it has been an incredible privilege to work for them and the clients we've had have just benefited enormously from the work of the cases, which are the habeas cases. And I send the students off to have a look at what's going on in those cases. And do we want to get in on them? And that's actually how we got in on Dwayne Duns case, which resulted in exoneration. I also want to make it clear that this is not an innocence project.
[00:23:02] Some of the people we represented are innocent.
[00:24:06] spatter expert. Dwayne's lawyer had gotten no expert. There are all kinds of reasons to have thought that Dwayne had nothing to do with it. They were friends and the eyewitnesses
[00:24:11] essentially said he went down to help him. And nobody ever saw Dwayne hit the sky over the head.
[00:24:22] And a really terrific lawyer at the state PD's office, John Shenoweth, got a pathologist the Dwayne Donne and we got in and defended the judgment of state appeal and we defended the judgment of the seventh circuit. And the outcome ultimately was that he was released, right? He was released and so the way a red of habeas corpus works is the federal courts can't directly
[00:25:42] vacate a conviction or sentence. not meant to be sexist is just, it's our experience. For Emma, just in terms of the, you know, just doing this work, kind of getting to do this work through the class, has it changed or influenced your opinions about our criminal justice system at all,
[00:27:01] like getting to really be immersed in it in that way
[00:27:03] and seeing some of these habeas cases play out?
[00:27:06] I don't know if it's changed anything, living posts, not this year, but last year, said something about the work they do being painstaking and heartbreaking. It's successful and it's expunged. So he is now sitting in prison with his sentence enhanced or something that never happens. started this sort of as an experiment. And so for 10 years, I've been an adjunct only. And my idea was that the law school would see the value of this, the work the students do, plus a couple of my former students have gone out and done the research
[00:31:01] and the statistics.
[00:31:02] And I don't know, the experiment was to sort of prove, to a proof of concept, you know, as an adjunct and maybe it would become a permanent clinic and the law school would create a full-time position for somebody and didn't have to be me. I was well, I'm
[00:32:20] perfectly willing to be Moses and never actually making it to the promised land. I mean, it
[00:32:25] really was something I was trying to give the law school. In when I repeatedly put it to them no interest in making it a permanent class with a full-time position to take it on because it would be a full, I mean by all the said, there's innocent projects everywhere, but that requires actual innocence. And there's cases, as you've mentioned, where people maybe did our guilty, factually, but that doesn't mean that what happened was okay with their case. So who'd also, during his interrogation, had put his hands inside his sweatpants and peed on them to wash off the gunshot residue. Yeah, no, that's in the police reports.
[00:36:20] We took that, I took that federal court to start with know a trial, right? Right. And we went up for a hearing in the federal court. It was my first and only hearing in federal court. My knees were knocking. And the judge who had never issued a written his life as far as I know issued a rip from
[00:37:40] the bench.
[00:37:41] I mean, he didn't even wait to write an opinion.
[00:37:44] He dictated the, he dictated the order from the bench. another student working on the case and just feeling everything click and our ideas bouncing off each other and Michael was there too we just kind of like we found something digging into the record and just everything clicking like that first moment that that happened working on a case was just like perfect. There's
[00:39:02] just a moment of just seeing it all come wins for the state public defender's office, but weren't for whatever reason. Absolutely. I have one question for both of you. What would your advice be for maybe law students who are listening right now who think,
[00:40:21] okay, HABEAS might be something interesting to pursue?
[00:40:24] Obviously, the HABEAS project is such a rarity, but are there other ways that, China, habeas classes and sometimes habeas is not even done separately. It's fit into federal jurisdiction classes. I don't know any other law school that actually gets away from the doctrinal stuff and does actual habeas litigation. It's veryinally. I mean, I made a huge mistake in a case recently that's the other team of the classes. Everybody makes mistakes, including me. And I love teaching from my own howlers. I made a huge mistake. Doctorinally, the position I was arguing was absolutely correct.
[00:43:02] And there's a US Supreme Court case out there saying,
[00:43:06] nope, not that. You've got a habeas appeal in the Seventh Circuit. No, the briefs already a week late. And I really, habeas, I don't, you know, I thought habeas was complicated too. And habeas, I mean, arcane. I didn't know anything about habeas, what you're telling me to do this. But Attorney General's office is where,
[00:44:20] if you're not gonna have a class in habeas,
[00:44:22] on Attorney General's office is the place
[00:44:24] that somebody who's interested in doing the work a cool thing, but is there anything we didn't ask you about that? You think it's important for people to understand this type of law or understand the project or just anything that you wanted to expand upon? Yes, Michael got to talk about the project ending, of our work that they go defend it for us. As I said, it's a group effort. And you know, well, I guess there's one story. If you wanna know how effective this can be,
[00:47:02] I mean, certainly there are cases that take years and years.
[00:47:04] There's one person we've created,
[00:47:06] it took us eight and a half years to do it. I'm just wrong around ideas. I think it's a shame that it might be ending. And I hope that somehow that doesn't happen. But we want to say thank you to you both just for the work you've done, but also just for taking the time to come on our program and talk about your experiences and talk about this. I think it's really helpful for our listeners to kind of understand
[00:48:23] some of these cases and certainly why they're important.
[00:48:25] Thank you for the opportunity. If you have a tip concerning one of the cases we cover, please email us at murdersheet at gmail.com. If you have actionable information about an unsolved crime, please report it to the appropriate authorities. If you're interested in joining our Patreon, that's available at www.patreon.com slash murder sheet.