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Ethically presenting mitigation evidence

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Ethically presenting mitigation evidence

  1. 1. ETHICALLY PRESENTING MITIGATION EVIDENCE Adam Tebrugge | Staff Attorney AmericanCivil LibertiesUnion of Florida P.O. Box 21142 Tampa, FL 33622-1142 Direct(813) 288-8390 | atebrugge@aclufl.org BecauseFreedomCan't Protect Itself | www.aclufl.org
  2. 2. Thank you! Florida Association of Criminal Defense Lawyers Northeast Chapter
  3. 3. Professional Organizations • Lawyers who are members of professional organizations have fewer ethical violations. • County Bar Associations • FACDL Statewide and local • NACDL • ABA
  4. 4. Preamble: Florida Rules Professional Conduct • In all professional functions a lawyer should be • competent, • prompt, and • diligent.
  5. 5. RULE 4-1.1 COMPETENCE • A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness, and preparation reasonably necessary for the representation.
  6. 6. Barriers to Competent Representation • Excessive workload “A lawyer’s work load must be controlled so that each matter can be handled competently.” • Case complexity • Lack of Time and Resources
  7. 7. Legal knowledge and skill • In determining whether a lawyer employs the requisite knowledge and skill in a particular matter, relevant factors include the relative complexity and specialized nature of the matter, the lawyer's general experience, the lawyer's training and experience in the field in question, the preparation and study the lawyer is able to give the matter, and whether it is feasible to refer the matter to, or associate or consult with, a lawyer of established competence in the field in question.
  8. 8. What is Required? • A lawyer need not necessarily have special training or prior experience to handle legal problems of a type with which the lawyer is unfamiliar. • A lawyer can provide adequate representation in a wholly novel field through necessary study. • Competent representation can also be provided through the association of a lawyer of established competence in the field in question.
  9. 9. Thoroughness and preparation Competent handling of a particular matter includes inquiry into and analysis of the factual and legal elements of the problem, and use of methods and procedures meeting the standards of competent practitioners. It also includes adequate preparation.
  10. 10. Dilligence • What information does the sentencing decision maker need? • Were relevant witnesses identified and interviewed? • Were relevant experts consulted? • Were all meaningful sentencing alternatives explored and presented? • GOAL: To present to the decision maker all relevant mitigating evidence prior to sentencing to ensure the best outcome for your client.
  11. 11. ETHICAL CONSEQUENCES • RULE 3-4.2 RULES OF PROFESSIONAL CONDUCT Violation of the Rules of Professional Conduct as adopted by the rules governing The Florida Bar is a cause for discipline.
  12. 12. 4.4 LACK OF DILIGENCE • The following sanctions are generally appropriate in cases involving a failure to act with reasonable diligence and promptness in representing a client: • Disbarment is appropriate when: • a lawyer knowingly fails to perform services for a client and causes serious or potentially serious injury to a client; or • a lawyer engages in a pattern of neglect with respect to client matters and causes serious or potentially serious injury to a client.
  13. 13. “Timely Justice Act” 2013 • Prohibits counsel found by the court to have twice provided constitutionally deficient representation resulting in relief from taking on new cases for a 5-year period. • The court must report each instance of constitutionally deficient representation to The Florida Bar for discipline.
  14. 14. “Timely Justice Act” 2013 • 27.7045 Capital case proceedings; constitutionally deficient representation.—Notwithstanding another provision of law, an attorney employed by the state or appointed pursuant to s. 27.711 may not represent a person charged with a capital offense at trial or on direct appeal or a person sentenced to death in a postconviction proceeding if, in two separate instances, a court, in a capital postconviction proceeding, determined that such attorney provided constitutionally deficient representation and relief was granted as a result. This prohibition on representation shall be for a period of 5 years, which commences at the time relief is granted after the highest court having jurisdiction to review the deficient representation determination has issued its final order affirming the second such determination.History.—s. 7, ch. 2013-216.
  15. 15. LACK OF COMPETENCE Disbarment is appropriate when a lawyer's course of conduct demonstrates that the lawyer does not understand the most fundamental legal doctrines or procedures, and the lawyer's conduct causes injury or potential injury to a client.
  16. 16. RULE 4-3.4 FAIRNESS TO OPPOSING PARTY AND COUNSEL • A lawyer shall not: • (a) unlawfully obstruct another party's access to evidence . . . nor counsel or assist another person to do any such act. • (b) fabricate evidence, counsel or assist a witness to testify falsely, or offer an inducement to a witness (c) knowingly disobey an obligation under the rules of a tribunal except for an open refusal based on an assertion that no valid obligation exists. • (d) in pretrial procedure, make a frivolous discovery request or intentionally fail to comply with a legally proper discovery request by an opposing party.
  17. 17. Mitigation Definition Circumstances that may be considered by a court in determining culpability of a defendant Mitigating circumstances do not justify or excuse an offense but may reduce the severity of a charge.
  18. 18. Mitigation A mitigating circumstance is a fact about either the offense or about the defendant which in fairness or in mercy may be considered as extenuating or reducing the degree of moral culpability, or which justifies a sentence of less than death, although it does not justify or excuse the offense
  19. 19. Mitigation in Court Seeks to eliminate excessive sentencing by highlighting the life history of offenders—their unique vulnerabilities, potential, and life circumstances—that have shaped them as individuals. Through extensive record collection, in-depth interviews, and other techniques, investigators are able to identify inter- generational patterns ranging from mental health issues to racial oppression that offer critical context for a client’s actions.
  20. 20. The Challenge “It is a challenge to shift the focus of defense teams to the life history of the defendant rather than thinking about a single legal issue from the moment they get a case. It is a challenge to educate judges about the import and value of life history evidence. It is challenging to change the root of why we punish so harshly by helping people see the defendant as a person.”
  21. 21. ABA Guidelines--2008 SUPPLEMENTARY GUIDELINES FOR THE MITIGATION FUNCTION OF DEFENSE TEAMS IN DEATH PENALTY CASES “The mitigation function is multifaceted and multi-disciplinary, even though ultimate responsibility for the investigation of such issues rests irrevocably with counsel. “
  22. 22. Types of Mitigation Mitigation evidence includes compassionate factors stemming from the diverse frailties of humankind, capacity for redemption, remorse, vulnerabilities related to mental health, explanations of patterns of behavior, negation of aggravating evidence, positive acts or qualities, responsible conduct in other areas of life (e.g. employment, education, military service, as a family member), any evidence bearing on the degree of moral culpability.
  23. 23. Mitigation Specialists . . . must be able to identify, locate and interview relevant persons in a culturally competent manner that produces confidential, relevant and reliable information. They must be skilled interviewers who can recognize and elicit information about mental health signs and symptoms, both prodromal and acute, that may manifest over the client's lifetime. They must be able to establish rapport with witnesses, the client, the client's family and significant others that will be sufficient to overcome barriers those individuals may have against the disclosure of sensitive information and to assist the client with the emotional impact of such disclosures. They must have the ability to advise counsel on appropriate mental health and other expert assistance.
  24. 24. Mitigation Specialists Training As opposed to fact investigators, mitigation specialists "are generally trained in the social sciences, with college degrees in social work or psychology," and "are adept at gathering institutional records, interviewing lay and professional people, and compiling case histories." "Significantly, they are trained in uncovering family trauma and screening for often subtle mental and psychological disorders," and are "experienced in interpersonal communication so they know how to develop trust and rapport with even the most difficult or distrustful of individuals." Part of the mitigation specialist's job is to "conduct a comprehensive life history investigation of the client and identify all relevant mitigation issues."
  25. 25. Records Mitigation specialists must possess the knowledge and skills to obtain all relevant records pertaining to the client and others. They must understand the various methods and mechanisms for requesting records and obtaining the necessary waivers and releases, and the commitment to pursue all means of obtaining records.
  26. 26. Mitigation to Consider 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.
  27. 27. Types of Expert Witnesses Medical doctors, psychologists, toxicologists, pharmacologists, social workers and persons with specialized knowledge of medical conditions, mental illnesses and impairments; substance abuse, physical, emotional and sexual maltreatment, trauma and the effects of such factors on the client’s development and functioning.
  28. 28. More Experts Anthropologists, sociologists and persons with expertise in a particular race, culture, ethnicity, religion. Persons with specialized knowledge of specific communities or expertise in the effect of environments and neighborhoods upon their inhabitants. Persons with specialized knowledge of institutional life, either generally or within a specific institution.
  29. 29. Lay Witnesses The client’s friends, teachers, classmates, co- workers, employers, and those who served in the military with the client, as well as others who are familiar with the client’s early and current development and functioning, medical history, environmental history, mental health history, educational history, employment and training history, military experience and religious, racial, and cultural experiences and influences upon the client or the client’s family;
  30. 30. More Lay Witnesses Social service and treatment providers to the client and the client’s family members, including doctors, nurses, other medical staff, social workers, and housing or welfare officials; Witnesses familiar with the client’s prior juvenile and criminal justice and correctional experiences;
  31. 31. Paying for Mitigation Specialists • Middelton v. State FSC Oct. 22, 2015 • Justice Pariente concurring: “A trial court should not deny a request for a mitigation specialist either based on the misconception that these specialists are similar to fact investigators or based on undue emphasis on an additional expert "costing too much.”
  32. 32. Paying for Mitigation Specialists {continued} (In Juvenile/Life resentencing cases) The court may appoint a forensic social worker or similar expert for purposes of conducting a forensic social evaluation pursuant to s. 921.1401, F.S. The rate for the service cannot exceed $75 per hour. Under these circumstances, an investigator will also need to be appointed (at the rate of $40 per hour) for purposes of conducting the investigatory portion of the evaluation such as gathering records and obtaining pertinent information. The scope of the expert's services will be limited to performing the forensic social work up of the defendant.

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