National Law Journal

USA: LAWYER OF THE YEAR: JAMES ELLIS

'Brief writer's' triumph -- James Ellis: Convincing court and country that executing the retarded is wrong.

 In James Ellis' eyes, mentally retarded persons however heinous their crimeshave no place on death rows. In his 1st argument in any court, this New Mexico law professor convinced the U.S. Supreme Court that the nation agrees.

 The justices last June held, 6-3, that execution of people with mental retardation violates the Eighth Amendment prohibition on cruel and unusual punishment. Thirteen years after ruling that those executions were constitutional, the court found that a national consensus now exists against them.

 For Ellis, who teaches at the University of New Mexico School of Law, the case of Virginia death row inmate Daryl Atkins was not so much about the death penalty as it was about mental disabilities. The decision was the culmination of 30 years of his work on behalf of mentally retarded and mentally ill persons in the civil and criminal justice systems.

 Ellis, 56, whose intense gaze is often at odds with his easygoing manner, didn't just convince the justices that a national consensus existed, a key element in the "cruel and unusual" analysis. He had personally helped to build that consensus.

 He did so through extensive writings on mental health and law, through his work with organizations such as the American Association on Mental Retardation (AAMR) and The ARC of the U.S., through his numerous appearances before state legislative and congressional committees and through his amicus briefs in 13 U.S.Supreme Court cases spanning 27 years.

 For those efforts and his landmark victory, Ellis is The National Law Journal's lawyer of the year, a selection based on an estimate of an attorney's important impact on the law in the previous 12 months.

 First appearance

 To those outside of the disability and capital punishment communities, choosing Ellis to argue the case, a self-described behind-the-scenes man who had never argued a court case, "not even a parking ticket," may have seemed a gamble.

 The stakes were enormous: Atkins' life was at issue, and his case offered a rare revisiting of a fairly recent precedent with life-or-death implications for many criminal defendants.

 But to 1 of Atkins' 3 Supreme Court lawyers, turning to Ellis to write and present the argument was a no-brainer.

 "It's kind of like if you're in the World Series," says Robert E. Lee of the Virginia Capital Representation Resource Center.

 "You're in the bottom of the 9th and you get to pick anyone you want to come to the plate. Jim has just been a leader in disabilities law virtually all of his professional life. There was an obvious expertise and awareness of the history of this issue that is truly unparalleled."

 Ellis had already created the road map for the argument, in an amicus brief he wrote on behalf of retardation advocacy groups in a case that everyone thought would address the mental-retardation issue. That was a challenge by North Carolina death row inmate Ernest McCarver. But the Supreme Court dismissed McCarver's case after North Carolina enacted a state ban on those executions. It replaced McCarver with Atkins.

 Ellis integrates his advocacy work with his academic duties. As he had done with all of his prior briefs, he brought on board in McCarver and Atkins several law school colleagues and formed a team of volunteer students to help with the research and to participate in his representation.

 The task of his "law firm," as he called the team, was to prove the existence of a national consensus. "We knew the difficulty," he says. "If the court was looking for an overwhelming majority of the death penalty states barring these executions, we didn't have it, and it wasn't clear that I was going to live to see it.

 "But we felt the challenge was to show all of the evidence of a consensus and to give a theory of what consensus means. We decided to show the court not just what states had done but why they did it."

 His team began an extraordinary paper chase, recalls his colleague Christian Fritz, a legal historian at the law school. "We divided up the work and cast a wide net to detect what we could, both in the pattern of legislative enactments and attitudes in the general public," says Fritz. "We literally combed through the legislative records in all 50 states and as far back as Penry and through local newspapers to get a sense of what was going on."

 Ellis knew much of the history 1st hand because it essentially was his life, says Molly Schmidt-Nowara, a student team leader at the time and now a staff attorney in the Washington Public Defender Service. "There was a lot of data, and it was challenging to figure out how to organize it," she says. "But I always had this sense [Ellis] knew exactly what the brief would look like, and then it did."

 Fritz agrees, adding, "He is really the person who personifies the indispensable, interdisciplinary link between those in science and therapy and those in law. No one could speak to those issues in as integrated a fashion as he could."

 Ellis' interest in helping the mentally disabled dates to the Vietnam War when, as a conscientious objector, he was assigned to alternate service at the Yale Psychiatric Hospital in 1969.

 "The hospital was worried about security for their nurses so they said, 'Let's hire pacifists.' Go figure," chuckles Ellis.

 He chose law over psychiatry and graduated from the University of California at Berkeley. From there he went to the Bazelon Center for Mental Health Law in Washington, and worked, he says, with such "giants" as Patricia Wald, former chief judge of the U.S. Court of Appeals for the District of Columbia and noted civil rights and First Amendment scholar Bruce Ennis. He subsequently took a faculty position at the University of New Mexico's law school, where he has been for 27 years.

 Turning point

 Ellis was drawn into criminal justice while working on an American Bar Association project in the '80s to revise criminal standards for the mentally ill. That work was noticed by the capital defense bar, some of whose members contacted him for help in their cases. The clients, Ellis says, "were individuals whose understanding was, in fact, so limited that it was inconceivable they deserved death. These were defendants with very limited resources who had made decisions to use those resources to make sure people didn't know how dumb they were. They were not nimble enough to figure out that maybe that was not the best strategy when facing a capital sentence."

 Ellis credits the AAMR and The ARC, in particular, for leading the campaign to ban the death penalty for the mentally retarded in the states, and he gives credit to the efforts of capital defense lawyers at the NAACP Legal Defense and Educational Fund Inc., among others.

 But Ellis has been vital, says Martha Ford, legal director of The ARC. "We rely on his legal expertise, his good judgment, his understanding of the issues," she says. "We trust him completely."

 The Atkins decision came at an important point in the death penalty debate, says Richard Dieter, director of the Death Penalty Information Center. "It fit in a pattern of concern about the death penalty," he says. "It affirmed we do have an evolving standard of decency and even allowed the notion that international opinion has a part in that consensus. All of that is a blueprint for future change."

 Ellis is not resting on his laurels. Death penalty states and even states that have enacted bans for the mentally retarded will have to revise their statutes to conform with Atkins. Ellis has drafted a guide for them.

 "I don't know yet how it will play out," he says, "but I'm working on it all the time."