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Law Practice

Feb. 5, 2021

An Interview with: Professor Ty Alper

Next in the Negotiating Trauma & the Law Series, Professor Ty Alper speaks about representing clients on death row; being hyper-aware of racial privilege; training a new generation of lawyers who do not seek to suppress the trauma of lawyering; and knowing that ‘putting the client first’ does not mean leaving the lawyer’s own emotions for last.

Mallika Kaur

Email: mallikakaur@law.berkeley.edu

Mallika is a lawyer and writer who focuses on human rights, with a specialization in gender and minority issues. She teaches skills and experiential courses at UC Berkeley School of Law, including "Negotiating Trauma, Emotions and the Practice of Law."

Ty Alper

Clinical Professor of Law, UC Berkeley School of Law

Ty is on the faculty of the Death Penalty Clinic at UC Berkeley School of Law

NEGOTIATING TRAUMA & THE LAW

Mallika Kaur: After all your years of working with and training attorneys, would you say capital defense attorneys are born or made? Is there a certain personality-type drawn to this work?

Ty Alper: I'm a big proponent of the idea that anyone can be any kind of lawyer they want to be. This is especially true of capital defense, which is always a team effort and requires so many different skills, not all of which any one person can possibly possess. You don't have to know from the time you were in diapers that you wanted to represent people facing execution to learn how to do it, and do it well. That said, it is not for everyone. I think this work tends to attract people who are not judgmental, and who have lots and lots of patience.

MK: I can think of so many layers of trauma interplaying in death penalty work. Working under the shadow of the ultimate penalty by the State. Knowing the nitty-gritty of the client's crime, often gruesome. Investigating the many traumas the client themselves faced in their lives. Also the communal & racial traumas they may have inherited. Then the trauma of being incarcerated. Finally, whatever traumas are triggered for the attorney themselves. How do you advise newer anti-death penalty advocates think about negotiating these layers? Do you find attorneys are more likely to focus on certain aspects over others?

TA: It's so important to recognize all the layers of trauma that you mentioned, and it is also true that at least two generations of death penalty lawyers have done a decent job suppressing the reality of how that trauma impacts them. We have tried, in the clinic, to shed our jaded outlook and be intentional about helping our students -- who tend to be far more self-aware and in touch with their emotions than we are -- learn how to navigate the vicarious trauma they experience for the first time as law students and that they will continue to experience if they pursue this work.

MK: Some your influential scholarship has focused on the role and participation of medial professional in executions. Have you observed differences in legal versus medical training when it comes to managing the emotional toll of this work?

TA: No, but it's an area I really would love to explore. I have always wanted to write about teaching students and lawyers how to deliver bad news, which is something that I have had to do a lot in my career. There is obviously so much we could learn about this from, say, oncologists.

MK: The science of Adverse Childhood Experiences is increasingly catching on in legal circles. Would you say the other hat you wear, as an education advocate, a Berkeley School Board member, has something to do with the insights you gained as a defense attorney about how much "childhood matters"?

TA: For decades, "childhood matters" has been the mantra of the capital defense community, and it infuses much of our teaching and lawyering. It's also the reason I ran for School Board in the first place. I love my day job, and it is affirming and rewarding to work with my colleagues and our students to protect our clients from the worst, most horrific punishment our system has devised. But we enter the picture long after every institution designed to protect children has failed our clients -- school, family, church, health care, government. I felt that it might be a rewarding complement to capital defense work to try to make a contribution at the front end, to try to level the playing field so all kids who attend public kindergarten have an equal opportunity to meet their potential.

MK: What drew you to capital defense work?

TA: I'm a big "there but for the grace of God go I" kind of person. I'm a pretty weak person. I did nothing to earn the happenstance of my birth. Our clients have endured -- and continue to endure, in the confines of the sexually-violent, dehumanizing, and dangerous institutions in which they are caged -- more than any person should ever have to endure. They inspire me, and it is rewarding and invigorating to represent them.

MK: Has there been a time when you've taken a break from this work due to its emotional toll?

TA: Working with law students sustains me in this work. Their idealism and excitement for the work refreshes me each year. And I love teaching. I like the performative aspect of it, but I also love the pedagogy. It's a real rush to see a student get better at a lawyering skill, or have an "aha" moment about some aspect of the work. I feel very lucky to be able to represent capital clients but in this teaching role, the joy of which blunts some of the emotional trauma of the work.

MK: How do you work to ensure your law school clinic is directly responsive to individual needs of students while also ensuring students' and attorneys' accountability to their case work?

TA: We see our roles as preparing students to do the work as lawyers. That means being sensitive to their trauma-responses, and teaching them how to recognize those responses and manage them in a productive and sustainable way. And it means teaching them how the profession demands standards of reliability and competence to which they must adhere, to protect the client's interests. It can be a tough balance. "It is not about you, it's about the client" is a different message than "You need to respond to, and accommodate, what your own body is telling you." Sometimes the client comes first, but that doesn't mean the lawyer/student doesn't need to be taken care of next.

MK: For yourself, could you share any occasion where you felt the full force of vicarious trauma?

TA: Very early in my career, when I was representing clients in non-capital cases in Washington, D.C., a client was sentenced to a shockingly long sentence that nobody expected, and I was completely devastated. I didn't know to cope and ended up impulsively (like, on the spot), adopting two kittens from the aunt of the client. It was a somewhat random manifestation of what I now recognize as vicarious trauma.

MK: Given the disproportionate men of color on death row, how do you think about your own racial privilege doing death penalty work? Have you noticed different ways in which students of color approach this work?

TA: Racism pervades every aspect of our clients' lives, and their cases. We talk about it all the time, because you can't represent your client well if you are not hyper-aware of the role that racial animus plays. Our Black students, not surprisingly, report a range of reactions to that aspect of the work, and I don't want to speak for them. As a white teacher, I am both deeply appreciative of the perspective that our students of color bring to the work, and also cognizant of how uncomfortable it can be to be one of a very small minority of students of color in a class where race is discussed explicitly in so many ways.

MK: How has COVID affected the reality of death penalty work in the U.S.?

TA: The appellate work can be done remotely, but so much of what we do is re-investigating our clients' lives, which requires extensive, on-the-ground interviews that are not possible right now. In that way, COVID has significantly hampered our work. We also can't visit with our clients, which is heartbreaking.

MK: For yourself personally, what supports your health and sustainability in this work?

TA: Having kids definitely forces you to worry about other things once in a while! Is my daughter going to be ok in college in Canada? What is my son posting on Tik Tok? Does the dog have fleas? The truth is, a balanced life is so important. I really want our law students to know you can do good, meaningful work as a lawyer -- and still have a family, and watch TV, and go to baseball games, or whatever happens to sustain you. 

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