Page 240 - Ad Hoc Report June 2018
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for extensive investigative, mitigation, and other expert assistance in both capital prosecutions and habeas petitions.924 The same lack of experience also hampers a judge’s ability to evaluate requests to fund these services, sometimes resulting in significant delays. According to Ruth Friedman, Director of the 2255 Project, some federal judges “may be unfamiliar with what constitutes mitigation, for exam-
ple, or with the extent to which habeas counsel must reexamine all aspects of the prior proceedings in the case in order to determine what claims to raise. This can make evaluating the reasonableness of specific requests difficult and again more time-consuming.”925 This delay reduces the time a petitioner has to collect evi- dence in support of potentially meritorious claims.
Lack of knowledge among federal judges can have serious consequences when it leads to appointment of poorly-qualified counsel or failure to approve ade- quate expert assistance or to do so in a timely fashion. In federal capital prosecu- tions, the 2010 Spencer Report Update found that, “there is a negative, or inverse, relationship between the attorneys’ hours on a case and their client’s risk of being sentenced to death; the more hours dedicated to a case, the lower the risk of a death sentence.”926 While the Spencer Report reviewed capital trial representa- tions, this dynamic is repeated in habeas cases. The Committee heard significant testimony from attorneys that the more time and resources they had for investiga- tors and experts for habeas petitions, the greater the probability that their petition would be successful.927 These issues will be discussed in greater detail below.
924 Forexample,aguidelinefromtheABA’sDeathPenaltyRepresentationProjectexplains:“The defense team must conduct an ongoing, exhaustive and independent investigation of every aspect of the client’s character, history, record and any circumstances of the offense, or other factors, which may provide a basis for a sentence less than death. The investigation into a client’s life history must survey a broad set of sources and includes, but is not limited to: medical history; complete prenatal, pediatric and adult health information; exposure to harmful substances in utero and in the environment; substance abuse history; mental health history; history of maltreatment and neglect; trauma history; educational history; employment and training history; military experience; multi-generational family history, genetic disorders and vulnerabilities, as well as multi-generational patterns of behavior;
prior adult and juvenile correctional experience; religious, gender, sexual orientation, ethnic, racial, cultural and community influences; socio-economic, historical, and political factors.” Supplementary Guidelines for The Mitigation Function of Defense Teams in Death Penalty Cases § 10.11 (2008).
925 RuthFriedman,Director,FederalCapitalHabeasProject,PublicHearing—Birmingham,Ala., Panel 3, Writ. Test., at 18.
926 KevinMcNally,Director,FederalDeathPenaltyResourceCounselProject,Public Hearing—Birmingham, Ala., Panel 3, Writ. Test., at 6.
927 AnFPDexplained:“Oneofourclientsinfederalhabeaswalkedoutofdeathrowafter20yearsand four successor petitions. The Ohio courts found that there was DNA and Brady [exonerating evidence] that was not turned over. We were able to do that because we were the Federal Defender and we had the resources. If it was a CJA panel [attorney], would they have been able to have the experts, the tenacity, the investigators? Would a court have allowed them to do what we have done over the years? That person is out now because of the dedication of the Federal Defenders, but when you have a Judge making a decision, “Well, I’ve given you money for this, why do I need to give you money for that?” Jon Sands, FPD, D. Ariz., Public Hearing—Minneapolis, Minn., Panel 5, Tr., at 28.
No recommendation presented herein represents T H E A D H O C C O M M I T T E E T O R E V I E W T H E C R I M I N A L J U S T I C E A C T the policy of the Judicial Conference of the United States unless approved by the Conference itself.






















































































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