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October 1, 2013
FSU awarded $50,000 for its Miller Resentencing Project

By Jan Pudlow
Senior Editor

The giant check for $50,000 rested on an easel at the Frost Courtroom at Florida State University College of Law, where student attorney Eric Schab smiled broadly at the counsel table.

This money — the 2013 Emil Gumpert Award from the American College of Trial Lawyers to FSU’s Public Interest Law Center — is financing Schab’s first job out of law school.

“There is no way I am going to get an opportunity like this anywhere else,” said Schab, a graduate fellow with the new job of administering the Miller Resentencing Project, the latest endeavor of the center’s Children in Prison Project, led by Glass Professor of Public Interest Law Paolo Annino

As Schab told those gathered for the check ceremony and reception on September 11, “As it stands right now, there are 207 inmates in the state of Florida who are currently serving unconstitutional sentences of life without parole for sentences they received when they were under the age of 18.

“Our mission is to ensure that every one of those kids gets a new sentence, based on a resentencing hearing that truly provides an individualized assessment of their case. We’re planning to accomplish that through two different steps. One is to ensure that all inmates have counsel, and two, to ensure that we are in touch with qualified experts and other helpful resources, so that we can pool all of these different aspects together and truly give each case an individual assessment that the U.S. Supreme Court said these cases deserve, in Miller v. Alabama, [132 S. Ct. 2455 (2012)].”

The Miller decision holds that mandatory sentences of life without the possibility of parole in homicide cases are unconstitutional for juvenile offenders. Still pending before the Florida Supreme Court is whether Miller should be applied retroactively to all 207 inmates.

Already, pro bono attorneys are stepping up to help. Schab specifically thanked Carolyn Barnhill of the Lauro Law Firm in Tampa, Jennell Weber at Shutts and Bowen in Tampa, and Lisabeth Fryer at Snure and Ponall in Winter Park. Other lawyers willing to help with the Miller Resentencing Project may contact Schab at .

FSU law students working on the Miller Resentencing Project are Kara Ottervanger, Chelsea Enright, and Joshua Fleshman. Ottervanger and Enright were excited about their “mega trip” planned for the following week.

“We are visiting four clients in two days at four different facilities,” Ottervanger said. “Most of us have a relationship with them. We are in contact with them. We know so much about their cases and home lives. We are so invested already. It will feel good to shake their hands and for them to know that we are here for them.”

Enright added: “We have talked to them on the phone multiple times and had written communication. I think that personal factor of going to see them really makes a difference. It also helps us personalize them, so when we represent them, we can represent them better. We can actually see the person and the face and how this is actually going to affect a person’s life — and not just some case number. This is a person.”

FSU College of Law Dean Don Weidner stood up at the ceremony to “express my thanks and my continuing admiration for Paolo and his work. Students literally come from all across the country to work with Paolo and his group.”

Annino told the audience how the Children in Prison project began in 1997, when Paul Doyle, of The Florida Bar Foundation, came to his office and asked him what he was doing about the 7,000 children who were being transferred to adult prisons.

“At that point, I wasn’t doing anything,” Annino admitted. After receiving a grant from the Foundation, research was conducted to show Florida led the nation in the number of children prosecuted as adults.

“I had never visited any children in adult prison,” Annino said, so he made the trip to Jefferson Correctional, where a skinny 13-year-old-girl, convicted as an adult for attempted kidnapping, was swiveling around in a chair. Annino always ends interviews with the open-ended question, “What do you want?” But he was startled when he heard this reply from the girl: “I want milk.”

That answer sparked the realization that “adult prison is not set up for kids,” Annino said, and inspired him to launch the new Children in Prison clinical program.

The program reaped national acclaim after one of Annino’s students, Lauren Cobb, now an assistant public defender in Pensacola, was clerking at the 11th Circuit Court of Appeals and was alarmed that a 14-year-old child had received four consecutive life sentences without parole for armed robbery.

“Is that possible, Professor Annino?” she asked.

At first, Annino thought it must have been a clerical error, but after researching it, “We found out that Florida is the lead in the entire country. We had 77 kids in adult prison for non-homicides, who had receive life sentences without parole. In contrast, 39 states in the union had zero kids in adult prison, and we had 77.”

That research became essential for Jacksonville attorney Bryan Gowdy, who represented Terrance Graham, sentenced at 16 for armed burglary and 17 for violation of probation. Gowdy had to show his client’s sentence of life without parole when no one was killed was unusual.

Gowdy argued the case before the U.S. Supreme Court, and Annino said Justice Breyer knew every footnote in his report. The result was the May 17, 2010, landmark ruling in Graham v. Florida holding that it was “cruel and unusual punishment” under the Eighth Amendment to sentence a juvenile to life in prison “without any meaningful opportunity to obtain release, no matter what he might do to demonstrate that the bad acts he committed as a teenager are not representative of his true character, even if he spends the next half century attempting to atone for his crimes and learn from his mistakes,” Justice Anthony M. Kennedy wrote for the majority in the 6-to-3 opinion.

As Annino told those gathered at the recent ceremony, and “a few years later, in a case called Miller — and that’s why where here — the U.S. Supreme Court extended that same principle to children who received mandatory life without parole sentences.”

Annino thanked Chilton Davis Varner, of King Spalding LLP in Atlanta, and president of the American College of Trial Lawyers, for the $50,000 check for the Miller Resentencing Project, selected from 70 nominations, because it will make a difference in how justice is administered and be able to be replicated in other states.

“I know $50,000 won’t win the world,” Varner said. “But it will do a lot of good.”

[Revised: 07-29-2014]