Page 256 - Ad Hoc Report June 2018
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experts at conducting civil discovery, for example, but must also be able
to delve into highly sensitive matters such as the client’s family, social, mental health, and other medical history to develop the case in mitigation; reinvestigate the case from the trial level; absorb and synthesize reams of documents pertaining to the client’s life history; and assemble and gain command of a court record that often spans years of prior litigation.993
CHUs are uniquely qualified to accept and effectively represent death penalty habeas clients while keeping costs lower than those expended on private attor- neys providing commensurate representation. Many of the federal judges who addressed the issues surrounding capital habeas corpus cases also are strong sup- porters of CHUs. A district court judge who has handled a large number of capital habeas cases told the Committee, “I’m in favor of the establishment of a capital habeas unit comprised of a small group of specialized attorneys who handle cap- ital habeas cases originating in both federal and state court, who would be more efficient and cost effective. That sentiment is shared by the US Attorney and the federal public defender from my district.”994
Creation of a CHU is just a first step; the unit must also be adequately funded and staffed. A former DSO employee testified that, “there are circuit courts...aggres- sively limiting the resources made available to counsel appointed in capital cases, and arbitrarily limiting the number of attorney staff in federal defender offices. Whether this is being done for ideological or financial reasons, it is an affront to
the right to counsel and the independence of the defense function.”995 This attitude seems to be softening. As noted above, the Fifth Circuit recently embraced the cre- ation of two CHUs within its jurisdiction.
Professor John Carroll, who spoke of the “spotty,” and in some places “incred- ibly bad” representation in capital habeas cases, recommended having a CHU in every district and circuit that has sufficient need for them:
Federal habeas corpus really represents the only hope that a person on death row has for any sort of relief in early involvement of the federal defender. I think emphasizing the need for Capital Habeas Units, the value that they bring to the system is the approach that I would take.996
993 ReneValladares,FPD,D.Nev.,PublicHearing—Birmingham,Ala.,Panel3,Writ.Test.,at4;it should be noted that habeas appeal is a civil, not criminal, matter. E.g., McFarland v. Scott, 512 U.S. 849 (1994).
994 JudgeMarciaCrone,E.D.Tex.,PublicHearing—Birmingham,Ala.,Panel1,Tr.,at3.
995 RobertBurke,FormerChief,TrainingDivision,DSO,PublicHearing—Philadelphia,Pa.,Panel7, Writ. Test., at 4.
996 Mag.JudgeJohnCarroll(ret.),M.D.Ala.,PublicHearing—Minneapolis,Minn.,Panel3,Tr.,at13.
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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