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Visiting Professor Erwin Chemerinsky discusses the importance of public interest law and his experiences with pro bono work.

Lawyers who champion public interest cases often must deal with defeat, visiting Professor Erwin Chemerinsky told a standing-room-only crowd in a Duke Law lecture hall on Nov. 12. But those lawyers should never forget the vital role they play ensuring that the powerless — those without money and without means to strong representation — have an advocate in the legal process and a chance of victory.

“At least you’re there for them and there’s a voice to be heard,” said Chemerinsky, who on Nov. 5 argued a pro bono case before the U.S. Supreme Court — a case many media commentators characterize as an uphill battle. “It’s all in the fight.”
Chemerinsky, speaking as part of the occasional “Faculty Lives in Public Service” lecture series, spent much of his talk focusing on the Supreme Court case, in which a California man faces 50 years to life for stealing nine videotapes from two Kmart stores. The severe sentence stems from California’s “three strikes” law, which demands lengthy prison sentences for repeat offenders.

Leandro Andrade, the defendant, had been convicted of several non-violent burglaries more than a dozen years ago. Thus the shoplifting of the tapes triggered the “third strike,” essentially condemning Andrade to spend the rest of his life in prison.

“I don’t understand why a prosecutor would want him to have a sentence of 50 years to life…” Chemerinsky said. “Sentencing a person to life in jail for shoplifting isn’t proportionate.”

Chemerinsky, who said he has no idea how the court eventually will rule, knows the stakes are high for others as well. If he wins, hundreds of other sentences could be challenged.

California’s three strikes law, credited with lowering crime, is considered by many observers to be the toughest in the nation — too tough, many say, because of its ability to generate life sentences for relatively minor crimes. Most other states require all three crimes in a three-strikes system to be considered violent or at least serious.

A standing-room-only crowd attended Professor Chemerinsky's lecture.

Chemerinsky joked about the grilling doled out by some members of the Supreme Court during his argument, especially from the more conservative justices.

“I thought I would at least get two sentences out before I’d get interrupted,” he said. “I got as far as, ‘For at least a century.’ ”

Chemerinsky, 49, is visiting Duke Law this year from the University of Southern California Law School, where his is the Sydney M. Irmas professor of public interest law, legal ethics and political science. He has spent much of his career fighting for people and causes in need of free representation.

Often he has lost, he told students and faculty at the lecture, and often he has found himself on the unpopular side of a well-known case.

“I’m fairly used to getting a large amount of hate mail,” he said.

He recounted reading the first of hundreds of negative emails he received last winter after agreeing to work on behalf of detainees — captured as part of the war on terrorism — held at Guantanamo Bay. The note was from an angry student at USC.

“Whenever I see you in the news you make me sick to my stomach,” the student wrote. “You make me wish I had gone to UCLA.”

“And it all went downhill from there,” Chemerinsky quipped.

He recounted another note from a minister threatening that God would smite him for working on a particular case.

But everyone deserves representation, Chemerinsky said, regardless of popularity. Beyond criminal defense, much work is needed in fighting for civil rights, the environment and the poor. And lawyers must be the ones to do that work.

“Law is the most powerful tool for social change that there is,” he said, adding: “I don’t accept the excuse that you’re just too busy as a lawyer.”

Becoming a professor might have limited his own time to work on cases, he said, but it also gave him a chance to help train a new generation of lawyers to fight the good fight.

“I get to work with students who will go out there and do really great things,” he said.