Dick Wheelan is a private practitioner in Houston, Texas. In practice for
15 years, he concentrates on criminal law, homicide, sexual assault and controlled
substances cases. A Director of the Harris County Criminal Lawyers Association
and member of the Texas Criminal Defense Lawyers Association, he is a member of the
American Bar Association Sentencing Guideline Committee. He was lieutenant
of detectives for the City of White Plains (NY) Police Department.
The investigation of a criminal case is the investigation of a criminal case. If you've seen one, you've seen them all. Logical enough? Not quite. The defense attorney has to approach death penalty cases differently. As Justice O'Connor said in her concurring opinion in Eddings v. Oklahoma, death is different. 1
The defense team's investigation in a death penalty case is unique for several reasons. First, because the stakes are so high, there is a difference in the intensity of the investigation. Every detail must be examined, nothing can be left to chance. Second, the scope of the investigation is broader than in a non-capital case. Because mitigation plays such an essential role in the penalty phase of a death penalty case, the defense investigation cannot focus on the facts of the offense only. Your client's entire life, social history, and psychological status are equally important. Third, in a death penalty case, lead counsel must assemble a team comprised of lawyers, investigators, and experts. Your role necessarily expands to include the coordination of team efforts. Fourth, because so much time usually passes before a death penalty phase goes to trial, re-investigation becomes increasingly important.
Admittedly, all of these concepts can apply to a non-capital criminal case to some extent, but in the normal course of events you simply cannot devote the same amount of time and resources to the non-capital case. Lincoln told us that all lawyers have to offer clients is time and advice. Given the demands of a criminal practice, we quickly learn to budget our time by allocating it only to areas that experience tells us will be productive. In the capital case, we must allow time to explore even those areas that may not initially appear important.
No short article can adequately instruct you on the investigation of a capital case, but if you have never defended a death penalty case before, some of the suggestions presented here should prove helpful. Of course the best way to get experience in the capital arena is to sit as second or third chair with seasoned veterans.
Resources: Indigent Defendant's Right to Assistance
Very few capital defendants can afford to retain counsel and hire the experts necessary to mount an adequate defense; counsel is invariably appointed. Virtually all states have a statute somewhere in the criminal procedure code which allows for payment of reasonably necessary expenses incurred by counsel for the indigent defendant. Consider, for example, the provisions of the Texas Code of Criminal Procedure:A counsel, other than an attorney with a public defender's office, appointed to represent a defendant in a criminal proceeding, including a habeas corpus hearing, shall be reimbursed for reasonable expenses incurred with prior court approval for purposes of investigation and expert testimony....2
This is typical of most state statutory schemes. The trial court has wide discretion to determine what is or is not a reasonable expense for investigators, and authorization must be secured before the money is spent. This means that you must come to the judge with a written motion showing the need for the expenditure, i.e., what you need the investigator to do. A meager amount is authorized, you incur the expense, and then you come back to the court with hat in hand and another motion asking for an additional authorization and setting forth the need therefore.
If you follow this procedure without safeguards, you might as well send a daily fax to the prosecutor, giving him a progress report on your investigation and briefing him on your trial strategy. The safe way to secure the authorizations you need is to file a motion to proceed ex parte. Once you secure the court's permission to proceed ex parte, you can then file ex parte motions under seal seeking authorization to spend money on experts and investigators. The order you prepare for each of these motions should contain language which compels the clerk to place them under seal once filed.
The seminal case supporting an indigent defendant's right to have experts and investigators is Ake v. Oklahoma.,3 In Ake, the Supreme Court ruled that a defendant who makes a threshold showing to the trial court that sanity will be a significant issue at trial is entitled to a competent expert to assist on the issue.4 The rationale has been expanded to include other types of experts as well as investigators. In addition, Ake authorizes the ex parte procedures outlined above.
The key to getting what you want is the ex parte preliminary showing. If you demonstrate a particular need on the record, the trial court must respond in a reasonable manner. Of course all requests for assistance should be framed in terms of the indigent defendant's right to effective assistance of counsel and due process. Do not be afraid to keep asking the court for more as long as you can demonstrate a specific need. Your expenses for investigators and experts will never approach those of the state. If the court fails to respond in a reasonable fashion, you may have reversible error if you have built a proper record.
Selecting an Investigator
Although as lead counsel you need to be very active in the investigation, you cannot do it yourself. You cannot be a witness at trial if it becomes necessary to impeach a witness whose testimony differs from his pretrial statements. For this and many other reasons, you need a professional investigator. Most investigators are former police officers or federal agents. They are experienced, and they usually have contacts which are invaluable. Although you should participate in witness interviews whenever possible, you should do so only in the presence of a third party such as your investigator, who can be an impeachment witness if necessary. Moreover, locating witnesses is time consuming and is a task best left to the professional.The commencement of a capital case is not the time to start searching for an investigator. The investigator you select to work on your team in a death penalty case should be someone who has earned your confidence, someone with whom you have developed a good working relationship in previous cases. If you haven't worked with an investigator before, ask some of the leading defense lawyers in your area who they use. Compile a list of several candidates, interview each of them, and use your first choice on a minor case. Continue the relationship if you are happy with the individual's work, but still utilize some of the other candidates on the list for other minor cases so that you have a basis for comparison. Going into a death penalty case, you must know that you have an investigator on whom you can rely.
Bear in mind that investigators can be strong in some areas and weak in others. Some navigate more efficiently in white-collar circles, others may have experience or language skills which make them particularly effective in cases with Spanish-speaking witnesses. A retired homicide detective might be a terrific ally in a murder case, but of little use in a fraud case. In a capital case, you must evaluate your investigative needs and select your investigator accordingly. It may be appropriate to split tasks among several investigators with different areas of expertise. It simply depends on the case.
Make sure that the investigator you select understands the commitment required for a capital case. Ascertain how the judge in the case handles investigative expenses, and discuss this with your investigator. You do not want misunderstandings to cause you to change horses in midstream.
Scope and Intensity of Defense Investigation
If the state is seeking the death penalty, you may be sure that the facts weigh heavily against your client. The need for an intensive, detailed investigation is obvious. Like the drowning man grasping at a straw, you must look for that one small detail that may open a door and help you to rebut some part of the state's case. A minor fact that may help to show that a co-defendant's statement was not in furtherance of the conspiracy, for example. Or an easily overlooked bit of ballistics information not included in the police expert's report that may raise the specter of a second gun. Actually, these examples are not minor details, but the point is you don't know how significant something may be if you never uncover it in the first place. Avenues that might not appear fruitful are sometimes ignored due to constraints of time in the non-capital case, but they must each be examined if the state is seeking the death penalty.Of course, the scope of your investigation in a death penalty case is much broader. Unfortunately, in many death penalty cases, the only real issue is punishment. Therefore, you must pay as much attention to possible mitigating and aggravating factors as you do to the facts surrounding the offense itself. You must obtain your client's medical records, school records, employment records, and military records. Each of these may suggest additional avenues of investigation. Don't forget divorce records, if applicable. Make sure your investigator speaks with ex-wives. Your client's family and friends must all be interviewed, as must employers, schoolmates, teachers, co-workers and neighbors. Any of these may suggest further leads to be investigated. If your client has been to prison before, you must obtain his prison records and speak with those made observations about him.
Surprise is always your enemy at trial, particularly in the penalty phase of a capital case. It is not enough to gather information which may serve in mitigation, you must determine what the state may offer as aggravating factors and attempt to prepare a rebuttal. In short, you need to uncover everything you can about your client, the good and the bad. You may assume that immediate family members know more about your client than anyone, but never forget that they may hold back or color information to keep themselves from looking bad. One of the most frequently encountered forms of mitigation is the emotional, physical or sexual abuse to which a defendant was subjected as a child. The abusive parents or siblings who were also abused may be reluctant to share necessary information with you. Therefore, even though it may initially appear to be a needless duplication of effort, each one must be interviewed separately.
Lead Counsel as Quarterback
In most capital cases, you will have another lawyer sitting second chair, several experts, and one or more investigators. Management skills suddenly become essential, and you can no longer afford to be the lone-wolf defender of the oppressed. It is your responsibility to see that the members of the team work well with you and with each other. The amount of work to be performed is vast, and many tasks must be delegated. Therefore coordination and communication become of paramount importance.Morale can be a factor. As leader, you must assure that each individual is doing his part and that each team member is aware of what the others are doing. Regular case meetings are the only way to achieve this. It is not as easy as it sounds. Everyone, including you, has his/her own schedule. Your second chair might have a hearing on another case, your experts are involved in other matters, and your investigators are also working other cases. From the outset, you must make it clear to each member that attendance at such meetings is mandatory. Probably the only way to accomplish this is to pick a mutually acceptable time on evenings or weekends, so that regular work schedules do not interfere.
The importance of communication cannot be emphasized too strongly. For example, you may have your second chair heading the effort to uncover mitigating evidence for the punishment phase of the trial. He may be working with one investigator and you may be working with another on the guilt-innocence evidence. Regular meetings with experts and investigators present may insure that your guilt-innocence investigator hears the mental health expert's thoughts about mitigation. He will also hear how the mitigation investigation is proceeding. He will then be sensitive to the needs of the punishment team and more likely to recognize any possible mitigating evidence which he encounters, even though mitigation is not a part of his assignment. Likewise, the mitigation team must be aware of the progress in the guilt-innocence phase of the investigation, so that team members are sensitive to any possible leads they may happen upon.
Need for Re-Investigation
A year or two may pass from arrest to trial in a capital case. Witnesses can move, die, be arrested, or simply lose their enthusiasm. Most people are heavily influenced by their emotions, and this directly impacts the manner in which they see things and recollect them later. The witness who is screaming for your client's scalp when he is first charged, may be less fervent a year later. He may be less certain about minor details, and the tenor of his statement may change significantly. By the same token, the ardent supporters of your client may be less zealous. All of us have had a client's spouse or girlfriend call our office repeatedly when he is first arrested, but after nine or ten months the calls have stopped, the jail visits have stopped, and we learn the spouse or significant other has taken up with a new partner. If this person is a potential witness in the case, you need to be aware of the change in attitude. It is crucial that we keep our fingers on the pulse of all the state and defense witnesses to whom we have access.There is another benefit to re-investigation. Lawyers who regularly revisit witnesses almost always find that they pick up some additional useful information. You may simply learn a little more about the witness and how to approach him or her on the stand. But you may learn helpful facts which you never would have thought to pursue.
For example, a Houston lawyer tells of a non-capital case in which his client was accused of hitting a young lady in the head with a wrench because she would not yield to his advances. The client's version was that the girl was a prostitute, and he hit her because she was stealing his wallet -- a defense which was not strengthened by the fact that the defendant fled when the police arrived. At first, the defense investigator couldn't locate the victim. Eventually a new address was ascertained, and the investigator went there. An elderly lady answered the door and told the investigator the victim no longer lived there. The old lady had no idea where to find the girl or who the girl's friends were. A second visit six weeks later revealed that the elderly lady, who enjoyed a cocktail or two in the afternoon (the first visit was in the morning), had thrown the girl out for stealing. Things began to look better. On a third visit, after sharing some refreshment with the investigator, the old lady recalled that the girl had left some things behind, and she produced some old clothes and a man's wallet. The wallet contained the defendant's driver's license and papers. The case was dismissed.
Each time you speak with a witness, the witness opens up a little bit more. Invariably the witness will provide information for which you never asked. It is imperative that you and your investigator revisit probable witnesses periodically.
Luck
The investigation phase of a capital case is a huge undertaking. Because of the depth and breadth of the investigation, you must seek to secure adequate funds. Assemble a reliable team, and use investigators with whom you have built a rapport in the past. Establish good communications between team members and make sure team efforts are well-coordinated. Have regular teams meetings to be attended by all members, review areas that require additional investigation, and revisit witnesses regularly.Many experienced defense lawyers have said that they would rather be lucky than good. You'll find that the more frequently you speak with witnesses, the luckier you'll be. n
Notes
1. 455 U.S. 104, 117-118 (1982).2. Art 26.05 (a) (emphasis added).
3. 470 U.S. 68 (1985).
4. Id at 74.