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Are You Still a Person if You’re Dead? DNA Court Case May Answer

Bloomberg Law discussed Kirkland partner Paul Clement’s leadership of a case involving the use of DNA testing to exonerate an executed person.

  • Paul Clement fighting for testing in case of man executed in 2006
  • Could be first DNA exoneration of executed person

Powerhouse attorney Paul Clement is pressing a Tennessee court for DNA testing to prove a man’s innocence in a potential history-making case that could turn on a single word.

Sedley Alley already has been executed, so Clement has to convince the criminal appeals court that Alley is a “person” under state law entitled to testing.

“I don’t think when somebody passes away they cease being a person,” he told the three-judge panel in a virtual argument earlier this month.

If the Kirkland & Ellis partner’s argument succeeds, it could lead to the first time DNA testing proves an innocent person was executed, according to the Innocence Project, which has worked on the case for over a decade.

“You might think at first blush it’s pretty obvious that Sedley Alley is a person convicted of murder,” Clement told Bloomberg Law in an interview. “But the state’s argument, that has succeeded so far, is person means living person,” the former solicitor general during George W. Bush’s administration explained.

“The fact that you have to add a word does seem to suggest that a person is still a person after they pass away,” Clement said.

The virtual argument came in an appeal from a trial court ruling against Alley’s estate, which is pressing the claim.

A former Antonin Scalia clerk who has argued over 100 times before the Supreme Court, Clement is working on the case pro bono with the Innocence Project.

The project’s director of post-conviction litigation, Vanessa Potkin, who’s been working on the case with project co-founder Barry Scheck, said they reached out to Clement for the appeal. “This is an extremely important case and we couldn’t think of a better person to come on board and to argue it before the appellate court,” Potkin said.

The case “touches upon the very integrity of the American legal system and whether we executed an innocent man,” Potkin said.

Alley was executed in 2006 for the 1985 murder of Marine Lance Cpl. Suzanne Marie Collins.

He was denied access to DNA testing under a legal ruling that was overturned after his death.

Re-investigation has revealed another potential suspect, according to the project. Among the evidence Alley’s estate wants tested is men’s underwear found near the victim’s body. She was also raped.

As often happens in criminal matters, the dispute may come down to whether a claimed right can prevail over the government’s claimed interest in finality.

“The state has a very significant interest in finality,” state lawyer Andrew Coulam told the Tennessee panel in response to Clement’s argument.

“At some point, this must end,” Coulam said. “It is also an important right to victims.”

On rebuttal, Clement said he has as much sympathy for crime victims as imaginable. “But their interests are not served if the wrong person has been executed for the crime and the actual perpetrator is at large,” he said.

Meanwhile, finality eludes Alley’s family and supporters.

“The last thing that Sedley asked of me was to take care of his daughter and his son,” his lawyer Kelley Henry said.

“To me, I feel like getting these results one way or the other—no matter what they prove—will be taking care of his daughter and his son,” she said, “because they will have closure and answers that they cannot have unless they get these results.”

Reproduced with permission. Published Feb. 23, 2021. Copyright 2021 by The Bureau of National Affairs, Inc. (800-372-1033) <http://www.bloombergindustry.com>