Page 254 - Ad Hoc Report June 2018
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should navigate representing someone whose death penalty has been imposed.”983 He informed the Committee that he was not aware of anyone in the district who had been given any habeas training, and that was something needing to be addressed.984
Comprehensive training is a necessity in death penalty cases. Without train- ing, attorneys overlook claims or make mistakes that could fatally undermine their clients’ ability to obtain relief. Emily Olson-Gault told the Committee that her ABA Project utilizes strategic counsel and experienced advisors to assist less-knowledge- able counsel. The purpose is to try and prevent,
failure to investigate certain types of claims that might not be obvious to someone who hasn’t done this work before. There are several very, very tricky parts to capital representation, but one of the tougher parts is that the law is so constantly changing...and if you don’t preserve a claim right now, even if that claim isn’t a viable claim under current law, the law may well change long before your client’s case reaches the end. If you didn’t bring it up now, it’s now waived.985
Inexperienced counsel cannot adequately prepare capital cases alone. Another panel attorney told the Committee that after being appointed to a case, “We did seek the services of a third lawyer who has expertise in death penalty....We have submitted an extensive budget plan, asking for funds for expert witnesses. It really opened my eyes to the necessity of training...some really comprehensive training to handle these types of cases.”986
National HAT Counsel told the Committee it was true that habeas corpus law
is difficult and complex. “It is manageable, however, and people can learn it and people can apply it and people do.”987 One of the issues with learning this law, he said, was the need for continuous training: “Unfortunately, it changes so rapidly once you learn it, it is as if the ground is moving beneath you.”988 A CJA panel attorney supported this point in her testimony, telling the Committee that although the fed- eral defender was trying to train panel attorneys to handle habeas cases, the training was “just so infrequent...then you are finding people who are thrown into really end- stage litigation, who don’t have the extensive knowledge base that is required.”989
Regional HAT Counsel Dick Burr not only confirmed the lack of adequate training for panel attorneys who work capital habeas corpus cases, he noted a cul- ture in his state of refusing outside assistance. He told the Committee that while
983 RichardEsper,CJAPanelAtty.,W.D.Tex.,PublicHearing—SantaFe,N.M.,Panel5,Tr.,at7. 984 Id.
985 EmilyOlson-Gault,Director,ABADeathPenaltyRepresentationProject,Public Hearing—Birmingham, Ala., Panel 4, Tr., at 26.
986 RichardEsper,CJAPanelAtty.,W.D.Tex.,PublicHearing—SantaFe,N.M.,Panel5,Tr.,at44.
987 Mark Olive, National Habeas Assistance and Training Counsel, Public Hearing—Birmingham, Ala., Panel 3, Tr., at 7.
988 Id.
989 MelanieMorgan,CJADist.Rep.,D.Kan.&W.D.Mo.,PublicHearing—SantaFe,N.M.,Panel5,Tr.,at45.
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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