Getting the Time to Do the
Right Thing
Danalynn Recer, Gulf Region Advocacy
Center
Getting Time to Do Your Jobs
Properly
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Get them appointed Immediately! Do NOT wait for the
State to decide whether to seek death.
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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)
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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
Getting Time, cont’d.
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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.
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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.
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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.
Stay on Message
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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
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Haste Makes Waste
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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.
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.
Build Record of Local Practice
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Affidavits of other attorneys
Affidavits of similar experts
Records of time provided in
other cases
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.
Equal Protection
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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)(citing
Harper 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 also Reed v. Reed, 404 U.S.
71, 76, 92 S. Ct. 251, 30 L. Ed. 2d 225
(1971).
Show Me the Money!
Strategic Funding Litigation as
Narrative Advocacy
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.
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.”
Courting the Court: Funding
Litigation is a Process
Application for funds
MUST BE EX PARTE
Sealed motions
Hearings in chambers or sealed
courtroom
Funding Narrative
Initial Funding Requests for
Preliminary Investigation
Preliminary Social History Intake
Preliminary Mental Health Consultation
Building the Narrative
Supplemental Funding Requests
for
Fact Investigation
Mitigation Specialist
Potential Testifying Experts
Litigate Discrimination
• Make Folks Uncomfortable
• Proportionality/Equal Protection
• Jury Issues
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Grand Jury Selection
Grand Jury Foreperson
Petit Jury
Change of Venue