F. Attorney Performance: Pretrial
The three sets of standards reproduced in this section¾the ABA guidelines, the NLADA standards, and the Nebraska standards¾are all virtually identical in language and content.
This section contains standards on the following topics:
- Requirement for performance standards
- Need to prepare as if death penalty to be sought
- Theory of case
- Independent investigation
- Close contact with client
- Pretrial motions
- Plea negotiations
- Need to inform client of plea options
- Explanation of plea contents and implications
Compare the standards below (except for "Need to Prepare As If Death Penalty to Be Sought") to those presented in Compendium Volume II, "Standards on Attorney Performance."
1. Requirement for Performance Standards
Commentary. Both the ABA and NLADA standards set forth a requirement for establishing performance standards. Presumably, these standards are to be used in conjunction with the Monitoring and Removal Standards supra. See also relevant standards in Compendium Volume II, "Standards on Attorney Performance."
ABA Guidelines for the Appointment and Performance of Counsel in Death Penalty Cases
Guideline 11.1 Establishment of Performance Standards
A. The appointing authority should establish standards of performance for counsel appointed in death penalty cases.
B. The standards of performance should include, but should not be limited to, the specific standards set out in Guidelines 11.3 through 11.9.
C. The appointing authority should refer to the standards of performance when assessing the qualification of attorneys seeking to be placed on the roster from which appointments in death penalty cases are to be made (Guideline 4.1) and in monitoring the performance of attorneys to determine their continuing eligibility to remain on the roster (Guideline 7.1).
NLADA Standards for the Appointment and Performance of Counsel in Death Penalty Cases
Standard 11.1 Establishment of Performance Standards
a. The appointing authority should establish Standards of performance for counsel appointed in death penalty cases.
b. The Standards of performance should include, but should not be limited to the specific Standards set out in Standards 11.3 through 11.9.
c. The appointing authority should refer to the Standards of performance when assessing the qualification of attorneys seeking to be placed on the roster from which appointments in death penalty cases are to be made (Standard 4.1) and in monitoring the performance of attorneys to determine their continuing eligibility to remain on the roster (Standard 7.1).
2. Need to Prepare As If Death Penalty to Be Sought
Commentary. A prosecutor's decision to proceed in seeking the death penalty may be delayed to garner information about the appropriateness of the death penalty. Vigorous counsel can at this point affect the prosecutor's decision by presenting mitigating evidence to show the inappropriateness of the death penalty. Even when this is not possible, acting on the assumption that the death penalty will be pursued is necessary to have sufficient time to gather all relevant evidence. The three standards here agree that prompt action is needed in potential capital cases.
ABA Guidelines for the Appointment and Performance of Counsel in Death Penalty Cases
Guideline 11.3 Determining That Death Penalty Is Being Sought
Counsel appointed in any case in which the death penalty is a possible punishment should, even if the prosecutor has not indicated that the death penalty will be sought, begin preparation for the case as one in which the death penalty will be sought while employing strategies to have the case designated by the prosecution as a non-capital one.
NLADA Standards for the Appointment and Performance of Counsel in Death Penalty Cases
Standard 11.3. Determining That the Death Penalty Is Being Sought
Counsel appointed in any case in which the death penalty is a possible punishment should, even if the prosecutor has not indicated that the death penalty will be sought, begin preparation for the case as one in which the death penalty will be sought while employing strategies to have the case designated by the prosecution as a non-capital one.
Nebraska Commission on Public Advocacy, Standards for Indigent Defense Services in Capital and Non-Capital Cases
Standard VII. Performance Standards for Counsel in Capital Cases
A. Capital Standard No. 1: Determining Whether Case Is Death Case
Counsel appointed in any case in which the death penalty is a possible punishment should, even if the prosecutor has not indicated that the death penalty will be sought, begin preparation for the case as one in which the death penalty will be sought while employing strategies to have the case designated by the prosecution as a non-capital one. Even if the case has not been filed as capital murder, if there exists any chance that the case could be amended to charge capital murder, counsel should utilize capital defense techniques and standards listed below. There can be no substitute for early attention to investigation and preservation of evidence.
3. Theory of Case
Commentary. Trials are often a contest between two versions of what happened, that offered by the prosecution and that offered by the defense. A theory of the case is needed to ensure that the defense version is coherent and believable and that it ties together the various "facts" of the case. It also provides a basis for the defense investigation to seek out witnesses and other evidence.
ABA Guidelines for the Appointment and Performance of Counsel in Death Penalty Cases
Guideline 11.7.1 General Trial Preparation
A. As the investigations mandated by Guideline 11.4.1 produce information, counsel should formulate a defense theory. In doing so, counsel should consider both the guilt/innocence phase and the penalty phase, and seek a theory that will be effective through both phases.
B. If inconsistencies between guilt/innocence and penalty phase defenses arise, counsel should seek to minimize them by procedural or substantive tactics.
NLADA Standards for the Appointment and Performance of Counsel in Death Penalty Cases
Standard 11.7.1 General Trial Preparation
(a) As the investigations mandated by Standard 11.4.1 produce information, counsel should formulate a defense theory. In doing so, counsel should consider both the guilt/innocence phase and the penalty phase, and seek a theory that will be effective through both phases.
Nebraska Commission on Public Advocacy, Standards for Indigent Defense Services in Capital and Non-Capital Cases
Standard VII. Performance Standards for Counsel in Capital Cases
I. Capital Standard No. 9: General Trial Preparation
1. As the investigations mandated by Capital Standard No. 2 produce information, counsel should formulate a defense theory. In doing so, counsel should consider both the guilt/innocence phase and the penalty phase, and seek a theory that will be effective through both phases.
4. Independent Investigation
Commentary. The ABA and NLADA standards for investigating duties of defense counsel are virtually identical in their specifications. The Nebraska standards closely follow these two national standards. See also the standards relating to investigation in Compendium Volume II, "Standards on Attorney Performance."
ABA Guidelines for the Appointment and Performance of Counsel in Death Penalty Cases
Guideline 11.4.1 Investigation
A. Counsel should conduct independent investigations relating to the guilt/innocence phase and to the penalty phase of a capital trial. Both investigations should begin immediately upon counsel's entry into the case and should be pursued expeditiously.
B. The investigation for preparation of the guilt/innocence phase of the trial should be conducted regardless of any admission or statement by the client concerning facts constituting guilt.
C. The investigation for preparation of the sentencing phase should be conducted regardless of any initial assertion by the client that mitigation is not to be offered. This investigation should comprise efforts to discover all reasonably available mitigating evidence and evidence to rebut any aggravating evidence that may be introduced by the prosecutor.
D. Sources of investigative information may include the following:
1. Charging Documents:
Copies of all charging documents in the case should be obtained and examined in the context of the applicable statues and precedents, to identify (inter alia):
A. the elements of the charged offense(s), including the element(s) alleged to make the death penalty applicable;
B. the defenses, ordinary and affirmative, that may be available to the substantive charge and to the applicability of the death penalty;
C. any issues, constitutional or otherwise, (such as statutes of limitations or double jeopardy) which can be raised to attack the charging documents.
2. The Accused:
An interview of the client should be conducted within 24 hours of counsel's entry into the case, unless there is a good reason for counsel to postpone this interview. In that event, the interview should be conducted as soon as possible after counsel's appointment. As soon as is appropriate, counsel should cover A-E below (if this is not possible during the initial interview, these steps should be accomplished as soon as possible thereafter):
A. Seek information concerning the incident or events giving rise to the charge(s), and any improper police investigative practice or prosecutorial conduct which affects the client's rights.
B. Explore the existence of other potential sources of information relating to the offense, the client's mental state, and the presence or absence of any aggravating factors under the applicable death penalty statute and any mitigating factors.
C. Collect information relevant to the sentencing phase of trial including, but not limited to, medical history (mental and physical illness or injury, alcohol and drug use, birth trauma and developmental delays); educational history (achievement, performance and behavior); special educational needs including cognitive limitations and learning disabilities; military history (type and length of service, conduct, special training); employment and training history (including skills and performance, and barriers to employability); family and social history (including physical, sexual or emotional abuse); prior adult and juvenile record; prior correctional experience (including conduct on supervision and in institutions, education or training, and clinical services); and religious and cultural influences.
D. Seek necessary releases for securing confidential records relating to any of the relevant histories.
E. Obtain names of collateral persons or sources to verify, corroborate, explain and expand upon information obtained in C above.
3. Potential Witnesses:
Counsel should consider interviewing potential witnesses, including:
A. eyewitnesses or other witnesses having purported knowledge of events surrounding the offense itself;
B. witnesses familiar with aspects of the client's life history that might affect the likelihood that the client committed the charged offense(s), possible mitigating reasons for the offense(s), and/or other mitigating evidence to show why the client should not be sentenced to death;
C. members of the victim's family opposed to having the client killed. Counsel should attempt to conduct interviews of potential witnesses in the presence of a third person who will be available, if necessary, to testify as a defense witness at trial. Alternatively, counsel should have an investigator or mitigation specialist conduct the interviews.
4. The Police and Prosecution:
Counsel should make efforts to secure information in the possession of the prosecution or law enforcement authorities, including police reports. Where necessary, counsel should pursue such efforts through formal and informal discovery unless a sound tactical reason exists for not doing so.
5. Physical Evidence:
Where appropriate, counsel should make a prompt request to the police or investigative agency for any physical evidence or expert reports relevant to the offense or sentencing.
6. The Scene:
Where appropriate, counsel should attempt to view the scene of the alleged offense. This should be done under circumstances as similar as possible to those existing at the time of the alleged incident (e.g., weather, time of day, and lighting conditions).
7. Expert Assistance:
Counsel should secure the assistance of experts where it is necessary or appropriate for:
A. preparation of the defense;
B. adequate understanding of the prosecution's case;
C. rebuttal of any portion of the prosecution's case at the guilt/innocence phase or the sentencing phase of the trial;
D. presentation of mitigation. Experts assisting in investigation and other preparation of the defense should be independent and their work product should be confidential to the extent allowed by law. Counsel and support staff should use all available avenues including signed releases, subpoenas, and Freedom of Information Acts, to obtain all necessary information.
NLADA Standards for the Appointment and Performance of Counsel in Death Penalty Cases
Standard 11.4.1 Investigation
a. Counsel should conduct independent investigations relating to the guilt/innocence phase and to the penalty phase of a capital trial. Both investigations should begin immediately upon counsel's entry into the case and should be pursued expeditiously.
b. The investigation for preparation of the guilt/innocence phase of the trial should be conducted regardless of any admission or statement by the client concerning facts constituting guilt.
c. The investigation for preparation of the sentencing phase should be conducted regardless of any initial assertion by the client that mitigation is not to be offered. This investigation should comprise efforts to discover all reasonably available mitigating evidence and evidence to rebut any aggravating evidence that may be introduced by the prosecutor.
d. Sources of investigative information may include the following:
Copies of all charging documents in the case should be obtained and examined in the context of the applicable statues and precedents, to identify (inter alia):
A. the elements of the charged offense(s), including the element(s) alleged to make the death penalty applicable;
B. the defenses, ordinary and affirmative, that may be available to the substantive charge and to the applicability of the death penalty;
C. any issues, constitutional or otherwise, (such as statutes of limitations or double jeopardy) which can be raised to attack the charging documents.
(2) An in-depth interview of the client should be conducted within 24 hours of counsel's entry into the case unless there is a good reason for counsel to postpone this interview. In that event, the interview should be conducted as soon as possible after counsel's appointment. As soon as is appropriate, counsel should cover A-E below (if this is not possible during the initial interview, these steps should be accomplished as soon as possible thereafter):
A. Seek information concerning the incident or events giving rise to the charge(s), and any improper police investigative practice or prosecutorial conduct which affects the client's rights.
B. Explore the existence of other potential sources of information relating to the offense, the client's mental state, and the presence or absence of any aggravating factors under the applicable death penalty statute and any mitigating factors.
C. Collect information relevant to the sentencing phase of trial including, but not limited to, medical history (mental and physical illness or injury, alcohol and drug use, birth trauma and developmental delays); educational history (achievement, performance and behavior); special educational needs (including cognitive limitations and learning disabilities); military history (type and length of service, conduct, special training); employment and training history (including skills and performance, and barriers to employability); family and social history (including physical, sexual or emotional abuse); prior adult and juvenile record; prior correctional experience (including conduct on supervision and in institutions, education or training, and clinical services); and religious and cultural influences.
D. Seek necessary releases for securing confidential records relating to any of the relevant histories.
E. Obtain names of collateral persons or sources to verify, corroborate, explain and expand upon information obtained in (C) above.
(3) Potential witnesses:
Counsel should consider interviewing potential witnesses, including:
A. eyewitnesses or other witnesses having purported knowledge of events surrounding the offense itself;
B. witnesses familiar with aspects of the client's life history that might affect the likelihood that the client committed the charged offense(s), possible mitigating reasons for the offense(s), and/or other mitigating evidence to show why the client should not be sentenced to death;
C. members of the victim's family opposed to having the client killed.
Counsel should attempt to conduct interviews of potential witnesses in the presence of a third person who will be available, if necessary, to testify as a defense witness at trial. Alternatively, counsel should have an investigator or mitigation specialist conduct the interviews.
(4) The police and prosecution:
Counsel should make efforts to secure information in the possession of the prosecution or law enforcement authorities, including police reports. Where necessary, counsel should pursue such efforts through formal and informal discovery unless a sound tactical reason exists for not doing so.
(5) Physical evidence:
Where appropriate, counsel should make a prompt request to the police or investigative agency for any physical evidence or expert reports relevant to the offense or sentencing.
(6) The scene:
Where appropriate, counsel should attempt to view the scene of the alleged offense. This should be done under circumstances as similar as possible to those existing at the time of the alleged incident (e.g., weather, time of day, and lighting conditions).
Counsel should secure the assistance of experts where it is necessary or appropriate for:
A. preparation of the defense;
B. adequate understanding of the prosecution's case;
C. rebuttal of any portion of the prosecution's case at the guilt/innocence phase or the sentencing phase of the trial;
D. Presentation of mitigation.
Experts assisting in investigation and other preparation of the defense should be independent and their work product should be confidential to the extent allowed by law. Counsel and support staff should use all available avenues including signed releases, subpoenas, and Freedom of Information Acts, to obtain all necessary information.
Nebraska Commission on Public Advocacy, Standards for Indigent Defense Services in Capital and Non-Capital Cases
Standard VIII. Performance Standards for Counsel in Capital Cases
B. Capital Standard No. 2: Investigation
Counsel should conduct independent investigations relating to the guilt/innocence and the penalty phases of a capital trial. Both investigations should begin immediately upon counsel's entry into the case and should be pursued expeditiously.
The investigation for preparation of the guilt/innocence phase of the trial should be conducted regardless of any admission or statement by the client concerning facts constituting guilt.
The investigation for the sentencing phase must be conducted regardless of any initial assertion by the client that mitigation is not to be offered. This investigation should comprise efforts to discover all mitigating evidence and evidence to rebut any aggravating evidence that may be introduced by the prosecutor.
Sources of investigative information may include the following:
1. Charging Documents
Copies of all charging documents in the case should be obtained and examined in the context of the applicable statutes and precedents, to identify (inter alia):
1.1 The elements of the charged offense(s), including the element(s) alleged to make the death penalty applicable;
1.2 The defenses, ordinary and affirmative, that may be available to the substantive charge and to the applicability of the death penalty;
1.3 Any issues, constitutional or otherwise, (such as statutes of limitations or double jeopardy) which can be raised to attack the charging documents.
2. The Accused
An interview of the client should be conducted within 24 hours of counsel's entry into the case, unless there is a good reason for counsel to postpone this interview. In the event there is a good reason to postpone this interview, it should be conducted as soon as possible after counsel's appointment. As soon as is appropriate, counsel should cover [the steps] below (if this is not possible during the initial interview, these steps should be accomplished as soon as possible thereafter):
2.1 Seek information concerning the incident or events giving rise to the charge(s), and any improper police investigative practice or prosecutorial conduct which affects the client's rights.
2.2 Explore the existence of other potential sources of information relating to the offense, the client's mental state, and the presence or absence of any aggravating factors under the applicable death penalty statute and any mitigating factors.
2.3 Collect information relevant to the sentencing phase of trial including, but not limited to, medical history (mental and physical illness or injury, alcohol and drug use, birth trauma and developmental delays); educational history (achievement, performance and behavior, and special educational needs including cognitive limitations and learning disabilities); military history (type and length of service, conduct, special training); employment and training history (including skills and performance, and barriers to employability); family and social history (including physical, sexual or emotional abuse); prior adult and juvenile record; prior correctional experience (including conduct on supervision and in institutions, education or training, and clinical services); and religious and cultural influences.
2.4 Seek necessary releases for securing confidential records relating to any of the relevant histories.
2.5 Obtain names of collateral persons or sources to verify, corroborate, explain and expand upon information obtained in 2.3 above.
3. Potential Witnesses
Counsel generally should interview potential witnesses, including:
3.1 Eyewitnesses or other witnesses having purported knowledge of events surrounding the offense itself;
3.2 Witnesses familiar with aspects of the client's life history that might affect the likelihood that the client committed the charged offense(s), possible mitigating reasons for the offense(s), possible mitigating evidence to show why the client should not be sentenced to death;
3.3 Members of the victim's family.
Counsel should attempt to conduct interviews of potential witnesses in the presence of a third person who will be available, if necessary, to testify as a defense witness at trial. Alternatively, counsel should have an investigator or mitigation specialist conduct the interviews.
4. The Police and Prosecution
Counsel should make efforts to secure information in the possession of the prosecution or law enforcement authorities, including police reports. Where necessary, counsel should pursue such efforts through formal and informal discovery unless a sound tactical reason exists for not doing so. Counsel should establish a reliable system of tracking the receipt of all information.
5. Physical Evidence
Counsel should, immediately upon entry into the case, make a prompt request to the police or investigative agency and prosecutor for preservation of all physical evidence, field notes, electronic recordings of police dispatch and emergency numbers or expert reports made in connection with the investigation, unless a sound tactical reason exists for refraining from doing this.
6. The Scene
Where possible, counsel should attempt to view the scene of the alleged offense. This should be done under circumstances as similar as possible to those existing at the time of the alleged incident (weather, time of day, and lighting conditions).
7. Expert Assistance
Counsel should secure the assistance of experts where it is necessary or appropriate for:
a. preparation of the defense;
b. adequate understanding of the prosecution's case;
c. rebuttal of any portion of the prosecution's case at the guilt/innocence phase or the sentencing phase of the trial;
d. presentation of mitigation.
Experts assisting in investigation and other preparation of the defense should be independent and their work product should be confidential to the extent allowed by law. Counsel and support staff should use all available avenues including signed releases, subpoenas, and Freedom of Information Acts, to obtain all necessary information.
5. Close Contact with Client
Commentary. See also Compendium Volume II, "Standards on Attorney Performance."
ABA Guidelines for the Appointment and Performance of Counsel in Death Penalty Cases
Guideline 11.4.2 Client Contact
Trial counsel should maintain close contact with the client throughout preparation of the case, discussing (inter alia) the investigation, potential legal issues that exist or develop, and the development of a defense theory.
NLADA Standards for the Appointment and Performance of Counsel in Death Penalty Cases
Standard 11.4.2 Client Contact
Trial counsel should maintain close contact with the client throughout preparation of the case, discussing (inter alia) the investigation, potential legal issues that exist or develop, and the development of a defense theory.
Nebraska Commission on Public Advocacy, Standards for Indigent Defense Services in Capital and Non-Capital Cases
Standard VIII. Performance Standards for Counsel in Capital Cases
…
C. Capital Standard No. 3: Client Contact
Trial counsel should maintain close contact with the client throughout preparation of the case, discussing (inter alia) the investigation, potential legal issues that exist or develop, and the development of a defense theory. Maintenance of good relations with the client and his/her family is absolutely essential to effect a competent defense.
6. Pretrial Motions
Commentary. See also Compendium Volume II, "Standards on Attorney Performance."
ABA Guidelines for the Appointment and Performance of Counsel in Death Penalty Cases
Guideline 11.5.1 The Decision To File Pretrial Motions
A. Counsel should consider filing a pretrial motion whenever there exists reason to believe that applicable law may entitle the client to relief or that legal and/or policy arguments can be made that the law should provide the requested relief.
B. Counsel should consider all pretrial motions potentially available, and should evaluate them in light of the unique circumstances of a capital case, including the potential impact of any pretrial motion or ruling on the strategy for the sentencing phase, and the likelihood that all available avenues of appellate and postconviction relief will be sought in the event of conviction and imposition of a death sentence. Among the issues that counsel should consider addressing in a pretrial motion are:
1. the pretrial custody of the accused;
2. the constitutionality of the implicated statute or statutes;
3. the potential defects in the charging process;
4. the sufficiency of the charging document;
5. the propriety and prejudice of any joinder of charges or defendants in the charging document;
6. the discovery obligations of the prosecution including disclosure of aggravating factors to be used in seeking the death penalty, and any reciprocal discovery obligations of the defense;
7. the suppression of evidence gathered as the result of violations of the Fourth, Fifth or Sixth Amendments to the United States Constitution, including:
a. the fruits of illegal searches or seizures;
b. involuntary statements or confessions; statements or confessions obtained in violation of the accused's right to counsel, or privilege against self-incrimination;
c. unreliable identification testimony which would give rise to a substantial likelihood of irreparable misidentification;
8. suppression of evidence gathered in violation of any right, duty or privilege arising out of state or local law;
9. access to resources which may be denied to the client because of indigency and which may be necessary in the case, including independent and confidential investigative resources, jury selection assistance, and expert witnesses concerning not only the charged offense(s) and the client's mental condition, but also the criminal justice system itself;
10. the defendant's right to a speedy trial;
11. the defendant's right to a continuance in order to adequately prepare his or her case;
12. matters of evidence or procedure at either the guilt/innocence or penalty phase of trial which may be appropriately litigated by means of a pretrial motion in limine. including requests for sequestered, individual voir dire as to the death qualification of jurors and any challenges to overly restrictive rules or procedures;
13. matters of trial or courtroom procedure;
14. change of venue;
15. abuse of prosecutorial discretion in seeking the death penalty;
16. challenges to the process of establishing the jury venire.
Guideline 11.6.2 The Contents of Plea Negotiations
A. In order to develop an overall negotiation plan, counsel should be fully aware of and make sure the client is fully aware of:
1. the maximum penalty that may be imposed for the charged offense(s) and any possible lesser included offenses;
2. where applicable, any collateral consequences of potential penalties less than death, such as forfeiture of assets, deportation and civil liabilities, as well as direct consequences of potential penalties less than death, such as the possibility and likelihood of parole, place of confinement and good-time credits;
3. the general range of sentences for similar offenses committed by defendants with similar backgrounds, and the impact of any applicable sentencing guidelines or mandatory sentencing requirements.
NLADA Standards for the Appointment and Performance of Counsel in Death Penalty Cases
Standard 11.5.1 The Decision to File Pretrial Motions
(a) Counsel should consider filing a pretrial motion wherever there exists reason to believe that applicable law may entitle the client to relief or that legal and/or policy arguments can be made that the law should provide the requested relief.
(b) Counsel should consider all pretrial motions potentially available, and should evaluate them in light of the unique circumstances of a capital case, including the potential impact of any pretrial motion or ruling on the strategy for the sentencing phase, and the likelihood that all available avenues of appellate and postconviction relief will be sought in the event of conviction and imposition of a death sentence. Among the issues that counsel should consider addressing in a pretrial motion are:
1. the pretrial custody of the accused;
2. the constitutionality of the implicated statute or statutes;
3. the potential defects in the charging process;
4. the sufficiency of the charging document;
5. the propriety and prejudice of any joinder of charges or defendants in the charging document;
6. the discovery obligations of the prosecution including disclosure of aggravating factors to be used in seeking the death penalty, and any reciprocal discovery obligations of the defense;
7. the suppression of evidence gathered as the result of violations of the Fourth, Fifth or Sixth Amendments to the United States Constitution, including:
A. the fruits of illegal searches or seizures;
B. involuntary statements or confessions; statements or confessions obtained in violation of the accused's right to counsel, or privilege against self-incrimination;
C. unreliable identification testimony which would give rise to a substantial likelihood of irreparable misidentification;
8. suppression of evidence gathered in violation of any right, duty or privilege arising out of state or local law;
9. access to resources which may be denied to the client because of indigency and which may be necessary in the case, including independent and confidential investigative resources, jury selection assistance, and expert witnesses concerning not only the charged offense(s) and the client's mental condition, but also the criminal justice system itself;
10. the defendant's right to a speedy trial;
11. the defendant's right to a continuance in order to adequately prepare his or her case;
12. matters of evidence or procedure at either the guilt/innocence or penalty phase of trial which may be appropriately litigated by means of a pretrial motion in limine, including requests for sequestered, individual voir dire as to the death qualification of jurors and any challenges to overly restrictive rules or procedures;
13. matters of trial or courtroom procedure;
14. change of venue;
15. abuse of prosecutorial discretion in seeking the death penalty;
16. challenges to the process of establishing the jury venire.
Nebraska Commission on Public Advocacy, Standards for Indigent Defense Services in Capital and Non-Capital Cases
Standard VII. Performance Standards for Counsel in Capital Cases
…
D. Capital Standard No. 4: The Decision to File Pretrial Motions
1. Counsel should file pretrial motions whenever there exists reason to believe that applicable law may entitle the client to relief or that legal and/or policy arguments can be made that the law should provide the requested relief.
2. Counsel should consider every pretrial motion potentially available, and should evaluate all motions in light of the unique circumstances of a capital case, including the potential impact of any pretrial motion or ruling on the strategy for the sentencing phase, and the likelihood that all available avenues of appellate and postconviction relief will be sought in the event of conviction and imposition of a death sentence. Among the issues that counsel should consider addressing in a pretrial motion are:
a. the pretrial custody of the accused;
b. the constitutionality of the implicated statute or statutes;
c. the potential defects in the charging process;
d. the sufficiency of the charging document;
e. the propriety and prejudice of any joinder of charges or defendants in the charging document;
f. the discovery obligations of the prosecution including disclosure of aggravating factors to be used in seeking the death penalty, and any reciprocal discovery obligations of the defense;
g. the suppression of evidence gathered as the result of violations of the Fourth, Fifth, or Sixth Amendments to the United States Constitution, including:
(i) the fruits of illegal searches or seizures
(ii) involuntary statements or confessions; statements or confessions in violation of the accused's right to counsel or privilege against self incrimination;
(iii) unreliable identification testimony which would give rise to substantial likelihood of irreparable misidentification;
h. suppression of evidence gathered in violation of any right, duty or privilege arising out of state or local law;
i. access to resources which may be denied to the client because of indigency and which may be necessary in the case, including independent and confidential investigative resources, jury selection assistance, and expert witnesses concerning not only the charged offense(s) and the client's mental condition, but also the criminal justice system itself;
j. the defendant's right to a speedy trial;
k. the defendant's right to continuance in order to adequately prepare his or her case;
l. matters of evidence or procedure at either the guilt/innocence or penalty phase of trial which may be appropriately litigated by means of a pretrial motion in limine, including requests for sequestered, individual voir dire, especially as to publicity and the death qualification of jurors and any challenges to overly restrictive rules or procedures;
m. matters of trial or courtroom procedure;
n. change of venue;
o. abuse of prosecutorial discretion in seeking the death penalty;
p. challenges to the process of establishing the jury venire.
7. Plea Negotiations
Commentary. Most criminal cases are resolved by guilty pleas. Cases involving homicide charges are no different in this regard.
ABA Guidelines for the Appointment and Performance of Counsel in Death Penalty Cases
Guideline 11.6.1 The Plea Negotiation Process
A. Counsel should explore with the client the possibility and desirability of reaching a negotiated disposition of the charges rather than proceeding to a trial. In so doing, counsel should fully explain the rights that would be waived by a decision to enter a plea instead of proceeding to trial, and should explain the legal and/or factual considerations that bear on the potential results of going to trial.
B. Counsel should ordinarily obtain the consent of the client before entering into any plea negotiations.
C. Counsel should keep the client fully informed of any continued plea discussion or negotiations, convey to the client any offers made by the prosecution for a negotiated settlement and discuss with the client possible strategies for obtaining an offer from the prosecution.
D. Counsel should not accept any plea agreement without the client's express authorization.
E. The existence of ongoing plea negotiations with the prosecution does not relieve counsel of the obligation to take steps necessary to prepare a defense. If a negotiated disposition would be in the best interest of the client, initial refusals by the prosecutor to negotiate should not prevent counsel from making further efforts to negotiate.
NLADA Standards for the Appointment and Performance of Counsel in Death Penalty Cases
Standard 11.6.1 The Plea Negotiations Process
(a) Counsel should explore with the client the possibility and desirability of reaching a negotiated disposition of the charges rather than proceeding to a trial. In so doing, counsel should fully explain the rights that would be waived by a decision to enter a plea instead of proceeding to trial, and should explain the legal and/or factual considerations that bear on the potential results of going to trial.
(b) Counsel should ordinarily obtain the consent of the client before entering into any plea negotiations.
(c) Counsel should keep the client fully informed of any continued plea discussion or negotiations, convey to the client any offers made by the prosecution for a negotiated settlement and discuss with the client possible strategies for obtaining an offer from the prosecution.
(d) Counsel should not accept any plea agreement without the client's express authorization.
(e) The existence of ongoing plea negotiations with the prosecution does not relieve counsel of the obligation to take steps necessary to prepare a defense. If a negotiated disposition would be in the best interest of the client, initial refusals by the prosecutor to negotiate should not prevent counsel from making further efforts to negotiate.
Standard 11.6.2 The Contents of Plea Negotiations
(a) In order to develop an overall negotiation plan, counsel should be fully aware of and make sure the client is fully aware of:
1. the maximum penalty that may be imposed for the charged offense(s) and any possible lesser included offenses;
2. where applicable, any collateral consequences of potential penalties less than death, such as forfeiture of assets, deportation and civil liabilities, as well as direct consequences of potential penalties less than death, such as the possibility and likelihood of parole, place of confinement and good-time credits;
3. the general range of sentences for similar offenses committed by defendants with similar backgrounds, and the impact of any applicable sentencing guidelines or mandatory sentencing requirements.
(b) In developing a negotiation strategy, counsel should be completely familiar with, inter alia:
1. concessions that the client might offer, such as:
a. an agreement not to proceed to trial on the merits of the charges;
b. an agreement not to assert or further litigate particular legal issues;
c. an agreement to provide the prosecution with assistance in investigating or prosecuting the present case or other alleged criminal activity;
d. an agreement to engage in or refrain from any other conduct, appropriate to the case.
2. benefits the client might obtain from a negotiated settlement, including inter alia:
a. a guarantee that the death penalty will not be imposed;
b. an agreement that the defendant will receive, with the assent of the court, a specified sentence;
c. an agreement that the prosecutor will not advocate a certain sentence, will not present certain information to the court, or will engage in or refrain from engaging in other actions with regard to sentencing;
d. an agreement that one or more of multiple charges will be reduced or dismissed;
e. an agreement that the client will not be subject to further investigation or prosecution for uncharged alleged or suspected criminal conduct;
f. an agreement that the client may enter a conditional plea to preserve the right to further contest certain issues affecting the validity of the conviction.
(c) In conducting plea negotiations, counsel should be familiar with:
1. the types of pleas that may be agreed to, such as a plea of guilty, a conditional plea of guilty, or a plea of nolo contendere or other plea which does not require the client to personally acknowledge guilt;
2. the advantages and disadvantages of each available plea according to the circumstances of the case;
3. whether a plea agreement can be made binding on the court and on penal/parole authorities.
(d) In conducting plea negotiations, counsel should attempt to become familiar with the practice and policies of the particular jurisdiction, the judge and prosecuting authority, the family of the alleged victim and any other persons or entities which may affect the content and likely results of plea negotiations.
Nebraska Commission on Public Advocacy, Standards for Indigent Defense Services in Capital and Non-Capital Cases
Standard VII. Performance Standards for Counsel in Capital Cases
E. Capital Standard No. 5: The Plea Negotiations Process
1. Counsel should explore with the client the possibility and desirability of reaching a negotiated disposition of the charges rather than proceeding to a trial. In so doing, counsel should fully explain the rights that would be waived by a decision to enter a plea instead of proceeding to trial, and should explain the legal and/or factual considerations that bear on the potential results of going to trial.
2. Counsel should ordinarily obtain the consent of the client before entering into any plea negotiations.
3. Counsel should keep the client fully informed of any continued plea discussion or negotiations, convey to the client any offers made by the prosecution for a negotiated settlement and discuss with the client possible strategies for obtaining an offer from the prosecution.
4. Counsel should not accept any plea agreement without the client's express authorization.
5. The existence of ongoing plea negotiations with the prosecution does not relieve counsel of the obligation to take steps necessary to prepare a defense. If a negotiated disposition would be in the best interest of the client, initial refusals by the prosecutor to negotiate should not prevent counsel from making further efforts to negotiate.
F. Capital Standard No. 6: The Contents of Plea Negotiations
…
2. In developing a negotiation strategy, counsel should be completely familiar with, inter alia:
a. Concessions that the client might offer, such as:
(i) an agreement not to proceed to trial on the merits of the charges;
(ii) an agreement not to assert or further litigate particular legal issues;
(iii) an agreement to provide the prosecution with assistance in investigating or prosecuting the present case or other alleged criminal activity;
(iv) an agreement to engage in or refrain from any other conduct, appropriate to the case.
b. Benefits the client might obtain from a negotiated settlement, including inter alia:
(i) a guarantee that the death penalty will not be imposed;
(ii) an agreement that the defendant will receive, with the assent of the court, a specified sentence;
(iii) an agreement that the prosecutor will not advocate a certain sentence, will not present certain information to the court, or will engage in or refrain from engaging in other actions with regard to sentencing;
(iv) an agreement that one or more of multiple charges will be reduced or dismissed;
(v) an agreement that the client will not be subject to further investigation or prosecution for uncharged alleged or suspected criminal conduct;
(vi) an agreement that the client may enter a conditional plea to preserve the right to further contest certain issues affecting the validity of the conviction.
3. In conducting plea negotiations, counsel should be familiar with:
a. the types of pleas that may be agreed to, such as a plea of guilty, a conditional plea of guilty, or a plea of nolo contendere or other plea which does not require the client to personally acknowledge guilt;
b. the advantages and disadvantages of each available plea according to the circumstances of the case;
c. whether a plea agreement can be made binding on the court and on penal/parole authorities.
4. In conducting plea negotiations, counsel should attempt to become familiar with the practice and policies of the particular jurisdiction, the judge and prosecuting authority, the family of the alleged victim and any other persons or entities which may affect the content and likely results of plea negotiations.
8. Need to Inform Client of Plea Options
Commentary. The client is the final decision-maker as to whether to plead guilty. The attorney's responsibility is to make sure that the plea decision is an informed one. The standards here spell out what information the client must have for that decision to be an informed decision.
ABA Guidelines for the Appointment and Performance of Counsel in Death Penalty Cases
Guideline 11.6.2 The Contents of Plea Negotiations
A. In order to develop an overall negotiation plan, counsel should be fully aware of and make sure the client is fully aware of:
1. the maximum penalty that may be imposed for the charged offense(s) and any possible lesser included offenses;
2. where applicable, any collateral consequences of potential penalties less than death, such as forfeiture of assets, deportation and civil liabilities, as well as direct consequences of potential penalties less than death, such as the possibility and likelihood of parole, place of confinement and good-time credits;
3. the general range of sentences for similar offenses committed by defendants with similar backgrounds, and the impact of any applicable sentencing guidelines or mandatory sentencing requirements.
Guideline 11.6.3 The Decision to Enter a Plea of Guilty
A. Counsel should inform the client of any tentative negotiated agreement reached with the prosecution, and explain to the client the full content of the agreement along with the advantages, disadvantages and potential consequences of the agreement.
B. The decision to enter or to not enter a plea of guilty should be based solely on the client's best interest.
NLADA Standards for the Appointment and Performance of Counsel in Death Penalty Cases
Standard 11.6.2 The Contents of Plea Negotiations
(a) In order to develop an overall negotiation plan, counsel should be fully aware of and make sure the client is fully aware of:
1. the maximum penalty that may be imposed for the charged offense(s) and any possible lesser included offenses;
2. where applicable, any collateral consequences of potential penalties less than death, such as forfeiture of assets, deportation and civil liabilities, as well as direct consequences of potential penalties less than death, such as the possibility and likelihood of parole, place of confinement and good-time credits;
3. the general range of sentences for similar offenses committed by defendants with similar backgrounds, and the impact of any applicable sentencing guidelines or mandatory sentencing requirements.
Nebraska Commission on Public Advocacy, Standards for Indigent Defense Services in Capital and Non-Capital Cases
Standard VII. Performance Standards for Counsel in Capital Cases
…
F. Capital Standard No. 6: The Contents of Plea Negotiations
1. In order to develop an overall negotiation plan, counsel should be fully aware of and make sure the client is fully aware of:
a. the maximum penalty that may be imposed for the charged offense(s) and any possible lesser included offenses;
b. where applicable, any collateral consequences of potential penalties less than death, such as forfeiture of assets, deportation and civil liabilities, as well as direct consequences of potential penalties less than death, such as the possibility and likelihood of parole, place of confinement and good time credits;
c. the general range of sentences for similar offenses committed by defendants with similar backgrounds, and the impact of any applicable sentencing guidelines or mandatory sentencing requirements.
9. Explanation of Plea Contents and Implications
Commentary. Once the client determines that a plea of guilty is in her or his best interests, the standards require defense counsel to fully explain the exact terms of the plea agreement and what will occur in court when the plea is entered. There should be no surprises at the plea hearing for the client, for counsel, or for the court.
ABA Guidelines for the Appointment and Performance of Counsel in Death Penalty Cases
Guideline 11.6.4 Entry of the Plea Before the Court
A. Prior to the entry of the plea, counsel should:
1. make certain that the client understands the rights he or she will waive by entering the plea and that the client's decision to waive those rights is knowing, voluntary and intelligent;
2. make certain that the client fully and completely understands the conditions and limits of the plea agreement and the maximum punishment, sanctions and other consequences the accused will be exposed to by entering a plea;
3. explain to the client the nature of the plea hearing and prepare the client for the role he or she will play in the hearing, including answering questions from the judge and providing a statement concerning the offense.
B. During entry of the plea, counsel should make sure that the full content and conditions of the plea agreement are placed on the record before the court.
NLADA Standards for the Appointment and Performance of Counsel in Death Penalty Cases
Standard 11.6.3 The Decision to Enter a Plea of Guilty
(a) Counsel should inform the client of any tentative negotiated agreement reached with the prosecution, and explain to the client the full content of the agreement along with the advantages, disadvantages and potential consequences of the agreement.
(b) The decision to enter or to not enter a plea of guilty should be based solely on the client's best interest.
Standard 11.6.4 Entry of the Plea Before the Court
(a) Prior to the entry of the plea, counsel should:
1. make certain that the client understands the rights he or she will waive by entering the plea and that the client's decision to waive those rights is knowing, voluntary and intelligent;
2. make certain that the client fully and completely understands the conditions and limits of the plea agreement and the maximum punishment, sanctions and other consequences the client will be exposed to by entering a plea;
3. explain to the client the nature of the plea hearing and prepare the client for the role he or she will play in the hearing, including answering questions from the judge and providing a statement concerning the offense.
(b) During entry of the plea, counsel should make sure that the full content and conditions of the plea agreement are placed on the record before the court.
Nebraska Commission on Public Advocacy, Standards for Indigent Defense Services in Capital and Non-Capital Cases
Standard VII. Performance Standards for Counsel in Capital Cases
…
G. Capital Standard No. 7: The Decision to Enter a Plea of Guilty
1. Counsel should inform the client of any tentative negotiated agreement reached with the prosecution, and explain to the client the full content of the agreement along with the advantages, disadvantages and potential consequences of the agreement.
2. The decision to enter or to not enter a plea of guilty should be based solely on the client's best interest.
H. Capital Standard No. 8: Entry of the Plea Before the Court
1. Prior to the entry of the plea, counsel should:
a. make certain that the client understands the rights he or she will waive by entering the plea and that the client's decision to waive those rights is knowing, voluntary and intelligent;
b. make certain that the client fully and completely understands the conditions and limits of the plea agreement and the maximum punishment, sanctions and other consequences the accused will be exposed to by entering a plea;
c. explain to the client the nature of the plea hearing and prepare the client for the role he or she will play in the hearing, including answering questions from the judge and providing a statement concerning the offense.
2. During entry of the pleas, counsel should make sure that the full content and conditions of the plea agreement are placed on the record before the court.