Getting the Time to Do the Getting the Time to Do the Right ThingRight Thing

Danalynn Recer, Gulf Region Advocacy Danalynn Recer, Gulf Region Advocacy CenterCenter

Getting Time to Do Your Jobs Getting Time to Do Your Jobs ProperlyProperly

Get them appointed Immediately! Do NOT wait for the State to Get them appointed Immediately! Do NOT wait for the State to decide whether to seek death.decide whether to seek death.

Seek Continuances.Seek Continuances. Make a record demonstrating that your defense will be Make a record demonstrating that your defense will be

ineffective if you do not get more time. The Supreme Court has ineffective if you do not get more time. The Supreme Court has recognized the exhaustive investigation that the defense team recognized the exhaustive investigation that the defense team must undertake to prepare for trial, and that the ABA Guidelines must undertake to prepare for trial, and that the ABA Guidelines set the standard for how capital defense counsel will be judged. set the standard for how capital defense counsel will be judged. Wiggins v. SmithWiggins v. Smith, 539 U.S. 510, 524, 123 S.Ct. 2527 (2003), 539 U.S. 510, 524, 123 S.Ct. 2527 (2003)

How much time?How much time? ““Several thousand hours are typically required to provide Several thousand hours are typically required to provide

appropriate representation. For example, an in-depth appropriate representation. For example, an in-depth examination of federal capital trials from 1990 to 1997 examination of federal capital trials from 1990 to 1997 conducted on behalf of the Judicial Conference of the United conducted on behalf of the Judicial Conference of the United States found that the total attorney hours per representation in States found that the total attorney hours per representation in capital cases that actually proceeded to trial averaged 1,889.” capital cases that actually proceeded to trial averaged 1,889.” Commentary to ABA Guideline 6.1Commentary to ABA Guideline 6.1

Getting Time, cont’d.Getting Time, cont’d.

Attach expert affidavits from attorneys, investigators Attach expert affidavits from attorneys, investigators and mitigation specialists around the state who can and mitigation specialists around the state who can attest to how long it takes them to adequately attest to how long it takes them to adequately prepare for a capital trial.prepare for a capital trial.

You should also file, under seal and ex parte, a copy You should also file, under seal and ex parte, a copy of your investigation plan laying out all of the steps of your investigation plan laying out all of the steps you have taken thus far and what remains to be you have taken thus far and what remains to be done. done.

If the judge denies your objection, you must make a If the judge denies your objection, you must make a record at every hearing, every day of trial, and every record at every hearing, every day of trial, and every stage of litigation of how her refusal to give you stage of litigation of how her refusal to give you adequate time to prepare your client’s defense has adequate time to prepare your client’s defense has rendered you ineffective.rendered you ineffective.

Stay on Message

Don’t wait for scheduling conference to talk about timeEducating the judge, the client,

client’s family, victim’s family, and public.

Potty-training the prosecution

Haste Makes WasteHaste Makes Waste A recent review of death penalty cases in the state revealed A recent review of death penalty cases in the state revealed

that “(a)lmost two-thirds of all Texas cases reversed for that “(a)lmost two-thirds of all Texas cases reversed for ineffective assistance of counsel could have been avoided ineffective assistance of counsel could have been avoided by thorough document collection and witness interviews. by thorough document collection and witness interviews. Sadly, many of these cases involved public records or Sadly, many of these cases involved public records or records that could easily have been gathered with the use of records that could easily have been gathered with the use of a release.” a release.”

Texas capital defense lawyers are well advised in their Texas capital defense lawyers are well advised in their capital certification trainings that the best “way to avoid capital certification trainings that the best “way to avoid ineffective claims is to locate and adequately interview ineffective claims is to locate and adequately interview everyone relevant to either phase of the case. In all, ninety everyone relevant to either phase of the case. In all, ninety percent of capital reversals in Texas would have been percent of capital reversals in Texas would have been avoided by thorough record collection and investigation. avoided by thorough record collection and investigation.

Losch’s Texas Capital Defender Manual, 8th Edition, Texas Losch’s Texas Capital Defender Manual, 8th Edition, Texas Criminal Defense Lawyer’s Association, 2006. Criminal Defense Lawyer’s Association, 2006.

Haste Makes WasteHaste Makes Waste Should Mr. Client be convicted and Should Mr. Client be convicted and

sentenced to die, his case will be reviewed sentenced to die, his case will be reviewed and investigated by post-conviction counsel and investigated by post-conviction counsel looking for any evidence or argument that looking for any evidence or argument that trial counsel failed to present on Mr. Client’s trial counsel failed to present on Mr. Client’s behalf. These attorneys will be given a year behalf. These attorneys will be given a year or more just to prepare their initial claims, and or more just to prepare their initial claims, and additional time and resources for factual additional time and resources for factual development of those claims. Rushing trial development of those claims. Rushing trial counsel to prepare in just eight months runs counsel to prepare in just eight months runs an unacceptable risk that significant material an unacceptable risk that significant material evidence will be undeveloped at trial only to evidence will be undeveloped at trial only to be discovered during investigation under the be discovered during investigation under the more reasonable deadlines of post-conviction more reasonable deadlines of post-conviction proceedings. It is in the interest of all parties proceedings. It is in the interest of all parties that Mr. Client’s defense be fully investigated, that Mr. Client’s defense be fully investigated, developed and presented in the first instance.developed and presented in the first instance.

Build Record of Local PracticeBuild Record of Local Practice

Affidavits of other attorneys Affidavits of other attorneys Affidavits of similar expertsAffidavits of similar experts Records of time provided in Records of time provided in

other casesother cases

How much time is enough?How much time is enough?Though complete data concerning the average time allotted to all capital Though complete data concerning the average time allotted to all capital

defendants in Harris County is not readily available, the website of the Texas defendants in Harris County is not readily available, the website of the Texas Department of Criminal Justice, Institutional Division provides such data for those on Department of Criminal Justice, Institutional Division provides such data for those on death row. The average amount of time between appointment of counsel and the death row. The average amount of time between appointment of counsel and the sentencing verdict for defendants sentenced to die over the past ten years is 17 sentencing verdict for defendants sentenced to die over the past ten years is 17 months.months.

Complete data is available for all of the last 9 persons tried on capital Complete data is available for all of the last 9 persons tried on capital charges in Harris County where the State was seeking from the death penalty. In charges in Harris County where the State was seeking from the death penalty. In those cases, the average amount of time between arrest (or return to Harris County those cases, the average amount of time between arrest (or return to Harris County following reversal of conviction) and trial was approximately 15 months. That is following reversal of conviction) and trial was approximately 15 months. That is twice the amount of time allotted to Mr. Client.twice the amount of time allotted to Mr. Client.

In assessing the effectiveness of trial counsel, the Supreme Court of the In assessing the effectiveness of trial counsel, the Supreme Court of the United States has established a two-part test. United States has established a two-part test. Strickland v. WashingtonStrickland v. Washington, 466 U.S. 668, , 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). A defendant must show that: (i) counsel’s 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). A defendant must show that: (i) counsel’s performance fell below an objective standard of reasonableness and (ii) counsel’s performance fell below an objective standard of reasonableness and (ii) counsel’s errors “prejudiced” the defense by depriving the defendant of a fair trial whose result errors “prejudiced” the defense by depriving the defendant of a fair trial whose result is reliable. That objective standard of reasonableness is generally measured by the is reliable. That objective standard of reasonableness is generally measured by the prevailing standards of defense practice in the community. Clearly, if the average prevailing standards of defense practice in the community. Clearly, if the average convicted and condemned Houston citizen is granted 15 to 17 months to prepare and convicted and condemned Houston citizen is granted 15 to 17 months to prepare and Mr. Client is granted but 8 months, he has not received a level of representation Mr. Client is granted but 8 months, he has not received a level of representation consistent with the standards of practice in this courthouse.consistent with the standards of practice in this courthouse.

Equal ProtectionEqual Protection

Furthermore, the differential treatment of Furthermore, the differential treatment of Mr. Client is a denial of his right to Equal Mr. Client is a denial of his right to Equal Protection under the law as guaranteed to Protection under the law as guaranteed to him by the Fourteenth Amendment to the him by the Fourteenth Amendment to the United States Constitution. United States Constitution. Bush v. Gore Bush v. Gore 531 U.S. 98, 121 S.Ct. 525 (2000)(531 U.S. 98, 121 S.Ct. 525 (2000)(citingciting Harper v. Virginia Bd. of Elections,Harper v. Virginia Bd. of Elections, 383 383 U.S. 663, 665, 86 S.Ct. 1079, 16 L.Ed.2d U.S. 663, 665, 86 S.Ct. 1079, 16 L.Ed.2d 169 (1966) and 169 (1966) and Reynolds v. Sims,Reynolds v. Sims, 377 U.S. 377 U.S. 533, 555, 84 S.Ct. 1362, 12 L.Ed.2d 506 533, 555, 84 S.Ct. 1362, 12 L.Ed.2d 506 (1964). (1964). See alsoSee also Reed v. ReedReed v. Reed, 404 U.S. , 404 U.S. 71, 76, 92 S. Ct. 251, 30 L. Ed. 2d 225 71, 76, 92 S. Ct. 251, 30 L. Ed. 2d 225 (1971).(1971).

Show Me the Money!Show Me the Money!

Strategic Funding Litigation as Narrative Advocacy

ABA Guideline 9.1(C): Funding and Compensation

• Non-attorney members of the defense team should be fully compensated at a rate that is commensurate with the provision of high quality legal representation and reflects the specialized skills needed by those who assist counsel with the litigation of death penalty cases.

• 1. Investigators employed by defender organizations should be compensated according to a salary scale that is commensurate with the salary scale of the prosecutor’s office in the jurisdiction.

• 2. Mitigation specialists and experts employed by defender organizations should be compensated according to a salary scale that is commensurate with the salary scale for comparable expert services in the private sector.

• 3. Members of the defense team assisting private counsel should be fully compensated for actual time and service performed at an hourly rate commensurate with prevailing rates paid by retained counsel in the jurisdiction for similar services, with no distinction between rates for services performed in or out of court. Periodic billing and payment should be available.

ABA Guideline 4.1 (B): “The Legal Representation Plan should provide for counsel to receive the assistance of all expert, investigative and other ancillary professional services reasonably necessary or appropriate to provide high quality legal representation at every stage of the proceedings.”

Courting the Court: Funding Litigation is a Process

Application for funds

MUST BE EX PARTE

Sealed motions

Hearings in chambers or sealed courtroom

Funding Narrative

Initial Funding Requests for

Preliminary Investigation

Preliminary Social History Intake

Preliminary Mental Health Consultation

Building the Narrative

Supplemental Funding Requests for

Fact Investigation

Mitigation Specialist

Potential Testifying Experts

Litigate Discrimination

• Make Folks Uncomfortable

• Proportionality/Equal Protection

• Jury Issues– Grand Jury Selection– Grand Jury Foreperson– Petit Jury– Change of Venue