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August 1999 Capital Cases By Russell Stetler Russell Stetler is the Director of Investigation and Mitigation at the Capital Defender Office in New York City. He has investigated death penalty cases since 1980. From 1990 to 1995 he served as chief investigator at the California Appellate Project which co-ordinated post-conviction litigation on behalf of the hundreds of prisoners under the death penalty in California. He has lectured on capital case investigation for many years at the annual death penalty defense seminar in Monterey. Post-Conviction Investigation in Death Penalty Cases Winning post-conviction relief in death-penalty cases requires new facts and old law. New law, whether emanating from the High Court or Congress, has been largely unfriendly to capital habeas corpus petitioners, imposing stricter deadlines and tougher procedural bars to the litigation of constitutional claims. The old facts in a capital case are those which persuaded judge and jury to convict and impose the ultimate punishment. New facts will be needed to overcome the highly prejudicial perception of the client which flows from the facts presented at trial. Empathy-evoking facts are needed to persuade a new court to be merciful and find harm in legal error. Powerful new evidence is needed to undermine the reliability of an original capital murder conviction. To make matters even more difficult for practitioners who have accepted the awesome responsibility of representing prisoners under sentence of death, post-conviction facts in support of constitutional claims have to be developed quickly, cost-effectively, and comprehensively. They must be presented in an original timely petition, to meet the requirements of McCleskey v. Zant,1 the Antiterrorism and Effective Death Penalty Act of 1996, and their state-court analogues. The new facts must establish constitutional claims under old law invoking the most fundamental principles of fairness and due process. Two parallel tracks of investigation are required. One involves re-investigating the capital case; the other focuses on the client. Note that these tracks are different from the traditional pre-trial dichotomy of guilt and penalty investigations.2 Reinvestigating the capital case means examining the facts underlying conviction, sentence, effectiveness of representation, prosecutorial decision-making, juror misconduct, etc. Reinvestigating the client means assembling a more thorough biography than was known at the time of trial, not only to discover hitherto unpresented mitigation but also to identify mental-health claims which potentially reach beyond sentencing issues to fundamental questions of competency (in relation to all waivers, not just competency to stand trial) and mental-state defenses. To accomplish these re-investigations cost-effectively and comprehensively requires a systematic approach and a logical progression, rather than ad hoc piecemeal forays. It is crucial not to self-censor or limit the investigation by prioritizing prematurely. Begin the investigation immediately — without a day’s delay. But make sure that the investigation’s scope is wide enough to capture all the evidence which could lead to relief on any constitutional claim. Post-conviction investigation begins with a paper chase. Before any witnesses are interviewed, it is essential to track down all the paper which constitutes the record of the capital case and the client. In post-conviction litigation, paper often trumps live testimony. A buried record will often have greater credibility than a recanting witness. The courts themselves — especially federal courts — often prefer to receive evidence in written form, in order to conserve precious in-court time. The post-conviction paper chase not only establishes the limits of what was known and what could have been known at the time of trial, it also leads to dramatic documentary evidence in support of a new claim. A systematic methodology begins with collecting all the paper relating to the original trial — reporter’s transcripts, clerk’s transcripts (or court files), copies or photographs of exhibits, trial counsel’s file, and the prosecutor’s file. Trial counsel’s files will identify additional members of the defense team who also generated files — investigators, mitigation specialists, criminalists, jury consultants, mental health experts, etc. The post-conviction paper chase involves tracking down these files as well — not just relying on the reports which ended up in trial counsel’s file. Obtain the complete file — billing records and raw notes, as well as the finished work-product reports and memos. Repeat this process for the prosecution file. Don’t stop with the material produced for the defense in the normal discovery process, even assuming that trial counsel has kept all of that material intact. Ask for everything the prosecution will divulge. Utilize standing discovery orders in the trial court and your state’s open records act or freedom of information law if that will help. Invoke ongoing obligations under Brady v. Maryland,3 and Kyles v. Whitley.4 Identify the agencies and institutions, both public and private, which assisted the prosecution, and obtain their files on the case. Once again, obtain everything — billing records and raw notes, not just final reports. All The Old Papers On the parallel track of client investigation, the paper chase involves a multi-generational record-gathering process to find every document relating to the client’s life history.5 These documents are obtained by means of authorizations signed by parents, siblings, and other family members releasing confidential information and records. Thus, the information is gathered with absolute confidentiality. Typical life-history records include those relating to birth, marriage, divorce, and death; medical, rehabilitation, and psychiatric treatment; education; employment, earnings, and social services; military career; civil and criminal litigation; probation, parole, and correctional history, etc. The case documents and the life-history records will identify the universe of witnesses. A crucial part of the meticulous process of reviewing these records is simply identifying the individuals and institutions affecting the client’s fate — from childhood friends and school teachers to jail house informants and jurors, from birth hospital and junior high school to the DNA lab and county morgue. As records are inventoried and reviewed, every name should be noted, with identifying data and source. The comprehensive witness list then permits a thorough review of public records relating to the individuals and institutions — including civil and criminal court files, media reports, and electronic databases. Searching public records on this comprehensive list yields both the predictable (e.g., post-trial benefits received by testifying jailhouse informants) and the unpredictable, the unexpected windfall (e.g., prosecution mental-health expert indicted for fraud or juror’s undisclosed criminal conviction — denied under oath in voir dire). At the most mundane level, it also helps locate people years after trial, and provides background information about changes in their life circumstances which may affect their attitude toward the client’s case. Public records about institutions can also be invaluable — for example, identifying whistleblowers who sued the sheriff’s department over racial discrimination or the medical examiner for mixing up body parts. The paper phase of investigation is relatively invisible, especially in larger jurisdictions where public-record research is an inconspicuous routine. It can be delegated to law students and paralegals. But it will always suggest entirely new areas to explore in depth. It will also help counsel to analyze the evidence and establish realistic parameters concerning alternative scenarios. For example, if there was fingerprint evidence in the case, your paper chase will tell you whether the defense independently reviewed the evidence, whether the testifying prosecution expert has skeletons in his closet (as revealed by NEXIS or public records), and whether the cops who lifted the prints have subsequently been indicted for planting evidence. Only after you have assessed the fingerprint evidence does it make sense to begin interviewing critical guilt-phase witnesses, including coperpetrators6 and percipient witnesses. Witnesses will always be softer and more vulnerable to human frailty — the flaws of perception, memory, bias, and articulation. It is prudent to know which way the hard evidence points before embarking on these interviews. In the area of client-focused investigation, your initial review of the case will have identified not only the mental-health experts who testified at trial, but also the consulting experts who may have examined the client but did not testify. Negative evaluations at the time of trial may be unreliable and vulnerable to post-conviction attack under Ake v. Oklahoma,7 if your more thorough life-history investigation has produced hard evidence unknown to trial experts.8 For example, in one California case, trial experts had no psychiatric information relating to the maternal lineage. The client’s mother had died in childbirth, and the client knew nothing about her side of the family. Post-conviction investigation documented severe mental illness with strong evidence of an inheritable component among maternal relatives. It would have been counterproductive to re-interview the trial experts before uncovering this critical new evidence of mental illness. Investigating the client’s life requires skilled interviewing to overcome cultural and psychological barriers to the disclosure of family secrets. Concepts of remorse and shame have great cultural variability. A sense of loyalty may obstruct cross-cultural disclosure. Regardless of the culture, life-history investigation is invasive of privacy — seeking the darkest, most shameful and intimate secrets of the client’s family. The investigation exposes raw nerves and re-traumatizes the family. It will involve great trust and multiple interviews, in a cyclical process of disclosure. Strong Emotions Perhaps the most sensitive individuals who are encountered in post-conviction interviews are trial counsel, the jurors, and surviving family members of the victims. All three typically have strong emotional connections to the case, requiring great and different sensitivity in approach. In each case, however, it is important to have a full picture of the new evidence before approaching the critical interview. Thus, these areas of investigation should logically fall at the end of the process, rather than the beginning. As noted in ABA Standard 4-1.2 (c) concerning “The Function of Defense Counsel”: “Since the death penalty differs from other criminal penalties in its finality, defense counsel should respond to this difference by making extraordinary efforts on behalf of the accused.” The ABA’s Commentary amplifies the “death-is-different” point as follows: Because the client’s life is on the line . . . defense counsel should endeavor, within the bounds of law and ethics, to leave no stone unturned in the investigation and defense of a capital client. Notes 1. 499 U.S. 467 (1991). 2. But see Lee Norton, Capital Cases: Mitigation Investigations, The Champion, National Association of Criminal Defense Lawyers (May 1992), pp. 43-45, for an excellent summary of life-history investigation, applicable to both pretrial and post-conviction investigation. 3. 373 U.S. 83 (1963). 4. 514 U.S. 419 (1995). 5. See Russell Stetler, Locating and Retrieving Life-History Records, in California Death Penalty Defense Manual, 1993 edition, volume II, Mitigation Workbook, published by California Attorneys for Criminal Justice (CACJ) and California Public Defender Association (CPDA). 6. For a specific discussion of problems relating to coperpetrators, jailhouse informants, and incarcerated witnesses, see Russell Stetler, “Incarcerated Witnesses in Criminal Defense Investigation,” Public Defense Backup Center Report, New York State Defender Association (August/September 1997), pp. 5-7. 7. 470 U.S. 68 (1985). 8. For a general discussion of the inherent value of social histories in capital cases, see Craig Haney, The Social Context of Capital Murder: Social Histories and the Logic of Mitigation, Santa Clara Law Review, v. 35 (1995), pp. 547-609. Readers wishing to contribute information, ideas or articles for this column should contact: Tanya Greene NACDL Death Penalty Research Counsel 83 Poplar Street NW Atlanta GA 30303 Phone (404) 688-1202 Fax (404) 688-9440 e-mail tgreene@schr.org | |||||||||
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National Association of Criminal Defense Lawyers (NACDL) 1660 L St., NW, 12th Floor, Washington, DC 20036 (202) 872-8600 • Fax (202) 872-8690 • assist@nacdl.org | |||||||||
