Getting the Time to Do the Right Thing

1. Getting the Time to Do the Right Thing Danalynn Recer, Gulf Region Advocacy Center

2. Getting Time to Do Your Jobs Properly • Get them appointed Immediately! Do NOT wait for the State to decide whether to seek death. • Seek Continuances. • Make a record demonstrating that your defense will be ineffective if you do not get more time. The Supreme Court has recognized the exhaustive investigation that the defense team must undertake to prepare for trial, and that the ABA Guidelines set the standard for how capital defense counsel will be judged. Wiggins v. Smith, 539 U.S. 510, 524, 123 S.Ct. 2527 (2003) • How much time? • “Several thousand hours are typically required to provide appropriate representation. For example, an in-depth examination of federal capital trials from 1990 to 1997 conducted on behalf of the Judicial Conference of the United States found that the total attorney hours per representation in capital cases that actually proceeded to trial averaged 1,889.” Commentary to ABA Guideline 6.1

3. Getting Time, cont’d. • Attach expert affidavits from attorneys, investigators and mitigation specialists around the state who can attest to how long it takes them to adequately prepare for a capital trial. • You should also file, under seal and ex parte, a copy of your investigation plan laying out all of the steps you have taken thus far and what remains to be done. • If the judge denies your objection, you must make a record at every hearing, every day of trial, and every stage of litigation of how her refusal to give you adequate time to prepare your client’s defense has rendered you ineffective.

4. Stay on Message Don’t wait for scheduling conference to talk about time Educating the judge, the client, client’s family, victim’s family, and public. Potty-training the prosecution

5. Haste Makes Waste • A recent review of death penalty cases in the state revealed that “(a)lmost two-thirds of all Texas cases reversed for ineffective assistance of counsel could have been avoided by thorough document collection and witness interviews. Sadly, many of these cases involved public records or records that could easily have been gathered with the use of a release.” Texas capital defense lawyers are well advised in their capital certification trainings that the best “way to avoid ineffective claims is to locate and adequately interview everyone relevant to either phase of the case. In all, ninety percent of capital reversals in Texas would have been avoided by thorough record collection and investigation. Losch’s Texas Capital Defender Manual, 8th Edition, Texas Criminal Defense Lawyer’s Association, 2006.

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

7. Build Record of Local Practice • Affidavits of other attorneys • Affidavits of similar experts • Records of time provided in other cases

8. How much time is enough? Though complete data concerning the average time allotted to all capital 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 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 months. 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 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 twice the amount of time allotted to Mr. Client. In assessing the effectiveness of trial counsel, the Supreme Court of the United States has established a two-part test. Strickland v. Washington, 466 U.S. 668, 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 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 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 Mr. Client is granted but 8 months, he has not received a level of representation consistent with the standards of practice in this courthouse.

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

10. Show Me the Money! Strategic Funding Litigation as Narrative Advocacy

11. 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.

12. 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.”

13. Courting the Court: Funding Litigation is a Process

14. Application for funds MUST BE EX PARTE Sealed motions Hearings in chambers or sealed courtroom

15. Funding Narrative Initial Funding Requests for Preliminary Investigation Preliminary Social History Intake Preliminary Mental Health Consultation

16. Building the Narrative Supplemental Funding Requests for Fact Investigation Mitigation Specialist Potential Testifying Experts

17. Litigate Discrimination • Make Folks Uncomfortable • Proportionality/Equal Protection • Jury Issues • Grand Jury Selection • Grand Jury Foreperson • Petit Jury • Change of Venue