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Trial Defense

Guidelines:

Representing a

Child Client

Facing a

Possible Life

Sentence

Issued by the Campaign for the Fair Sentencing of Youth March 2015

HEATHER RENWICK

Litigation Counsel Principal Author

JEFF HOWARD Legal Director

JODY KENT LAVY Director & National Coordinator

CONTRIBUTORS

VANESSA ANTOUN LORI JAMES-TOWNES MAUREEN PACHECO

BETSY BIBEN JAMES JOHNSTON RICHARD PITTMAN

BRAD BRIDGE BARBARA KABAN MAE QUINN

ELIZABETH COE EMILY KELLER ASHLEY RATLIFF

DANA COOK CAROL KOLINCHAK ERIC SCHAB

CATHRYN CRAWFORD DEBORAH LABELLE NADIA SEERATAN

JOSH DOHAN MARSHA LEVICK DAVID SIEGEL

BERNARDINE DOHRN ERNIE LEWIS KIMBERLY THOMAS

LAUREN FINE SHOBHA MAHADEV JOANNA VISSER-ADJOIAN

ANGELYN FRAZER ROBIN MAHER SHONDA WILLIAMS

JOHN HARDENBERGH SCOTT MAIN BETSY WILSON

STEPHEN HARDWICK LISA MINUTOLA SARAH YOUNG

MARK HOULDIN MARIE OSBORNE

A special thank you to everyone who participated in the drafting of these trial defense guidelines.

MINNESOTA ASSOCIATION OF CRIMINAL DEFENSE LAWYERS

MINNESOTA BOARD OF PUBLIC DEFENSE

NEW HAMPSHIRE ASSOCIATION OF CRIMINAL DEFENSE LAWYERS

OHIO CHILDREN’S LAW CENTER

OHIO JUVENILE JUSTICE COALITION

WYOMING OFFICE OF THE STATE PUBLIC DEFENDER

YOUTH SENTENCING AND REENTRY PROJECT

UNIVERSITY & LAW SCHOOL PROGRAMS

CASE WESTERN RESERVE UNIVERSITY SCHUBERT CENTER FOR CHILD STUDIES

GEORGETOWN LAW JUVENILE JUSTICE CLINIC

LOYOLA LAW SCHOOL CENTER FOR JUVENILE LAW & POLICY

NORTHWESTERN UNIVERSITY SCHOOL OF LAW CHILDREN AND FAMILY JUSTICE CENTER

QUINNIPIAC UNIVERSITY SCHOOL OF LAW JUVENILE SENTENCING PROJECT

UNIVERSITY OF CHICAGO LAW SCHOOL CRIMINAL AND JUVENILE JUSTICE PROJECT

UNIVERSITY OF NORTH CAROLINA SCHOOL OF LAW YOUTH JUSTICE CLINIC

The list above reflects endorsements on the date of issuance. For an updated list of endorsements, please visit www.fairsentencingofyouth.org.

If your organization is interested in endorsing the guidelines, please contact [email protected].

INTRODUCTION

The objective of these guidelines is to set forth a national standard of practice to ensure zealous, constitutionally effective representation for all juveniles facing a possible life sentence (“juvenile life”) consistent with the United States Supreme Court’s holding in Miller v. Alabama , 132 S.Ct. 2455, 2469 (2012) that trial proceedings “take into account how children are different, and how those differences counsel against irrevocably sentencing [children] to a lifetime in prison.”

The representation of children^1 in adult court facing a possible life sentence is a highly specialized area of legal practice, therefore these guidelines address the unique considerations specific to the provision of a zealous trial defense. These guidelines set forth the roles and responsibilities of the defense team for the duration of a trial proceeding and outline child-specific considerations relevant to pre-trial, trial, and sentencing representation. Direct appeal and collateral review are not explicitly addressed in these guidelines.^2

These guidelines are premised on the following foundational principles:

 children are constitutionally and developmentally different from adults;  children, by reason of their physical and mental immaturity, need special safeguards and care;^3  children must not be defined by a single act;

 juvenile life defense is a highly specialized legal practice, encompassing the representation of children in adult court as well as the investigation and presentation of mitigation;  juvenile life defense requires a qualified team trained in adolescent development;

 juvenile life defense requires communicating with clients in a trauma-informed, culturally competent, developmentally and age-appropriate manner;

 juvenile life defense is based on the client’s expressed interests, informed by meaningful and competent child client participation;

(^1) The terms “children,” “child,” “child client,” “youth,” and “juvenile” used in these guidelines include

anyone charged in adult court for an offense committed when the individual was a minor, regardless of whether the client reaches the age of majority prior to or during the legal proceeding. (^2) Aspects of these guidelines will be relevant to transfer hearings and for children facing other extreme

sentences. For additional related guidance, see NJDC National Juvenile Defense Standards, ABA Guidelines for the Appointment and Performance of Defense Counsel in Death Penalty Cases, NJDC Juvenile Defense Attorneys and Family Engagement, and NLADA Standards for the Appointment of Counsel in Death Penalty Cases. Many of the concepts contained in the other guidelines are adopted here.

(^3) UN Convention on the Rights of the Child.

TABLE OF CONTENTS

PART 1 DEFENSE TEAM COMPOSITION AND ETHICAL DUTIES

1.1 DEFENSE TEAM COMPOSITION

1.2 PROFESSIONAL RESPONSIBILITY

1.3 DUTY OF LOYALTY TO CHILD CLIENT

1.4 FAMILY ENGAGEMENT

1.5 WORKLOAD

PART 2 DEFENSE COUNSEL QUALIFICATIONS AND RESPONSIBILITIES

2.1 QUALIFICATIONS

2.2 RELATIONSHIP WITH CHILD CLIENT

2.3 DEFENSE TEAM MANAGEMENT

2.4 CHILD CLIENT’S COMPETENCE TO STAND TRIAL

2.5 RETAIN EXPERT WITNESSES

2.6 DUTY TO ASSERT LEGAL CLAIMS

2.7 CHILD CLIENT TESTIMONY

2.8 CHILD-APPROPRIATE CONDITIONS

2.9 TRIAL PREPARATION

PART 3 INVESTIGATOR QUALIFICATIONS AND RESPONSIBILITIES

3.1 QUALIFICATIONS

3.2 INVESTIGATION

3.3 GUILT/INNOCENCE CASE STRATEGY DEVELOPMENT

PART 4 MITIGATION SPECIALIST QUALIFICATIONS AND RESPONSIBILITIES

4.1 QUALIFICATIONS

4.2 MITIGATION INVESTIGATION

4.3 MITIGATION STRATEGY DEVELOPMENT

PART 5 SENTENCING

5.1 PRESENTATION OF MITIGATING EVIDENCE

5.2 WITNESS TESTIMONY FOR MITIGATION

5.3 AGGRAVATING EVIDENCE

5.4 PRESENTENCE REPORT

PART 6 PLEA AGREEMENTS

6.1 PLEA NEGOTIATIONS

6.2 GUILTY PLEAS

PART 7 POST-SENTENCING RESPONSIBILITIES

7.1 POST-SENTENCING LEGAL ACTION

7.2 POST-SENTENCING RELATIONSHIP WITH CHILD CLIENT AND FAMILY

7.3 SUCCESSOR COUNSEL

7.4 FACILITY PROGRAMMING

7.5 REENTRY PLANNING

PART 8 DEFENSE TEAM COMPENSATION

8.1 PAY RATE

8.2 LITIGATE FOR FUNDING

PART 9 TRAINING

9.1 JURISDICTION-ALLOCATED FUNDS

9.2 CONTINUING EDUCATION

1.3 DUTY OF LOYALTY TO CHILD CLIENT

A duty of loyalty is owed to the child client. The defense team must act on behalf of the child client and not the client’s caretaker(s). The defense team may not disclose case information to the child client’s caretakers, including, but not limited to, parents, current or former guardians, extended family, social workers, counselors, teachers, or coaches, without the consent of the child client, unless required by rule or statute. If the opinion of the child client and caretaker diverge, the defense team is ethically and professionally obligated to act at the direction of the child client, assuming the child client’s competency.

1.4 FAMILY ENGAGEMENT

The defense team should be sensitive to the ongoing concerns and involvement of caretakers and loved ones while the child client is incarcerated. Although the duty of loyalty remains to the child client, assuming his or her consent, the defense team should provide members of the family and support network with regular updates and the opportunity to ask questions and receive clarification on the legal process.

Building a relationship with the child client’s caretakers and loved ones is essential to the defense team’s ability to conduct a comprehensive mitigation investigation.

1.5 WORKLOAD

All members of the defense team have an ethical obligation to limit their caseloads in recognition of the tremendous time and diligence required to investigate, prepare, and present a case for both guilt/innocence and mitigation. The time and resources required in a juvenile life case are comparable to those of a capital case. In jurisdictions with capital punishment, the workload restrictions placed on capital defenders also should apply to juvenile life defense counsel.

When a juvenile life case is assigned by a public defender office or other government mechanism, the assigning agency must limit the workload of the defense team to the level needed to permit the extraordinary time and effort necessary to ensure zealous and constitutionally effective representation.

PART 2: DEFENSE COUNSEL QUALIFICATIONS AND RESPONSIBILITIES

2.1 QUALIFICATIONS

Defense counsel must provide competent, diligent, zealous, and constitutionally effective advocacy on behalf of the child client, and understand the relevant state, federal, and international law—procedural and substantive—governing juvenile cases prosecuted in adult court.

At least one attorney must have specialized training^5 and relevant substantive experience representing child clients. In particular, at least one attorney must have experience interviewing and communicating with child clients in a trauma- informed and developmentally and age-appropriate manner.

At least one attorney must have specialized training and relevant substantive experience representing individuals charged with homicide offenses in adult court, including, but not limited to, the investigation and presentation of sentencing mitigation. When possible, one attorney should have experience investigating and presenting death penalty mitigation at a capital sentencing hearing.

2.2 RELATIONSHIP WITH CHILD CLIENT

Defense counsel must develop a relationship and maintain consistent communication with the child client, including consistent in-person meetings between court appearances. Defense counsel must provide a trauma-informed and a developmentally and age-appropriate explanation to the child client of all aspects of the case, including, but not limited to: the attorney-client relationship and confidentiality; the fact and mitigation investigations undertaken on behalf of the child client; pre-trial motions; hearings; the trial sequence; direct consequences of an adult criminal conviction; and possible plea offers. Defense counsel should explain in a developmentally and age-appropriate manner the expectation of the child client at each appearance in court. The child client must have consistent, meaningful opportunities to ask defense counsel questions and to discuss the case status and strategy. Defense counsel and the child client must discuss what information the child client is comfortable sharing and with whom.

(^5) See Part 9 for additional guidance on training and continuing education.

2.5 RETAIN EXPERT WITNESSES

In a timely manner, defense counsel must retain all relevant expert witness(es), including, but not limited to, expert witness(es) with specialized knowledge, skill, experience, training, and/or education in adolescent development. Expert witnesses may serve as consulting or testifying witnesses, and may include, but are not limited to, medical doctors, psychiatrists, psychologists, academics, social workers, correctional experts, and forensic experts. The entire defense team should aid defense counsel in identifying, selecting, and preparing expert and lay witnesses relevant to the guilt/innocence and mitigation strategies, and to rebut any aggravating facts presented by the prosecution.

Defense counsel must research and assess jurisdictional disclosure requirements prior to sharing privileged information with retained experts; carefully study the relevant subject matter to give experts adequate direction and focus; thoroughly discuss with experts all conclusions and the form and manner in which those conclusions are to be memorialized; and when relevant, fully prepare experts to testify.

When necessary, defense counsel must zealously litigate for funds to retain defense expert witnesses by submitting necessary declarations and evidence regarding indigency and the need for the expert(s). In the event expert funds are denied, defense counsel must create a sufficient record to litigate the issue on appeal and collateral review.

2.6 DUTY TO ASSERT LEGAL CLAIMS

At every stage of the case, defense counsel must consider all legal claims potentially available, investigate the basis for each potential claim before concluding whether to assert it, and evaluate each potential claim in light of the unique characteristics of juvenile life litigation. For each legal claim asserted, defense counsel should present the claim as forcefully as possible, tailoring the presentation to the facts and circumstances in the child client’s case and the applicable law in the relevant jurisdiction. Defense counsel must ensure that a full record is made in connection with all claims asserted.

In particular, defense counsel should litigate for a presumption against life sentences for children,^6 and should identify, investigate, and, where appropriate, assert potential legal claims that may reduce the likelihood of a life sentence. This includes motions that would preclude consideration of life sentences for children

(^6) “[G]iven all [the Court has] said in Roper , Graham , and [ Miller ] about children’s diminished culpability and heightened capacity for change, [the Court] think[s] appropriate occasions for sentencing juveniles to this harshest possible penalty will be uncommon.” Miller , 132 S.Ct. at 2469.

generally, and as applied to specific statutory schemes, including, but not limited to, felony murder, accomplice liability, mandatory enhancements, mandatory consecutive/aggregate sentences, mandatory transfers, and any sentencing scheme that does not allow for an individualized sentencing determination. Defense counsel also should raise child-specific claims where appropriate, including, but not limited to, child-centric jury instructions ( e.g., a “reasonable child” standard) and the susceptibility of children to false confessions.^7

2.7 CHILD CLIENT TESTIMONY

The child client retains the right to decide whether to testify in his or her case, however, the defense counsel must explain in a developmentally and age- appropriate manner the benefits and risks of testifying, including, but not limited to, the risk of self-incrimination and impeachment. If the child client decides to testify, defense counsel must thoroughly prepare the client to testify, including, but not limited to, explaining expectations for the child client and courtroom procedures.

Some jurisdictions afford defendants an opportunity for allocution prior to sentencing. In such instances, defense counsel must explain to the child client in a developmentally and age-appropriate manner the benefits and risks of testifying for purposes of allocution. If the child client will testify, defense counsel must thoroughly prepare the child client. If the child client maintains his or her innocence, defense counsel must prepare the child client accordingly.

2.8 CHILD-APPROPRIATE CONDITIONS

Defense counsel should advocate that the child client be placed in a juvenile facility until age 21 or the maximum allowable age. Defense counsel must investigate the extent to which the facility provides the child client legally mandated safety protections, medical and mental health care, rehabilitative treatment, and education services to which the child client is entitled.

2.9 TRIAL PREPARATION

As the investigation produces information, defense counsel should formulate a defense theory. Defense counsel should seek a theory that will be effective in connection with both guilt/innocence and sentencing and should seek to minimize any inconsistencies between the guilt/innocence and sentencing theories.

Defense counsel cannot effectively proceed to trial until the defense team has exhausted pretrial litigation, the guilt/innocence investigation, and the mitigation investigation.

(^7) See J.D.B. v. North Carolina , 131 S.Ct. 2394 (2011).

The investigator also must collect all relevant physical evidence relating to the facts of the case, including physical and documentary evidence. The fact investigation should include, but is not limited to:

 charging documents;  police reports;  autopsy reports;  records on all police officers involved in the case, including police misconduct reports;  comprehensive criminal background checks on all witnesses, including the child client, complaining witnesses, and co-defendants;  photographs;  video and/or audiotape recordings;  crime scene and crime lab reports;  surveillance videos;  cell phone records;  social media check on all potential prosecution and defense witnesses, including police officers;  incarceration records;  jailhouse recordings; and  other physical evidence.

3.3 GUILT/INNOCENCE CASE STRATEGY DEVELOPMENT

The investigator must assist defense counsel in coordinating and integrating the fact investigation into the case strategy, as well as synthesizing investigative information for the defense team.

PART 4: MITIGATION SPECIALIST QUALIFICATIONS AND RESPONSIBILITIES

4.1 QUALIFICATIONS

The mitigation specialist must be able to identify, locate, and interview persons relevant to mitigation in a culturally competent manner that produces confidential and relevant information. The mitigation specialist also must be competent to obtain all relevant records pertaining to the child client and case and understand the various methods and mechanisms for requesting records and obtaining necessary waivers and releases.

The mitigation specialist should have specialized knowledge of adolescent development, including, but not limited to, developmental science and other research that informs specific legal questions regarding capacities, responsiveness to treatment, and culpability. The mitigation specialist also should have experience interviewing and communicating with children in a trauma-informed and developmentally and age-appropriate manner.

The mitigation specialist should have specialized training and relevant substantive experience identifying symptoms of physical, mental, and behavioral impairment.

4.2 MITIGATION INVESTIGATION

The mitigation specialist must investigate and develop a social, psychological, and genealogical history of the child client for purposes of presenting mitigating evidence at sentencing. The mitigation specialist also should work with the child client and his or her caretaker(s) to develop a reentry plan to present at sentencing.

Mitigation evidence includes, but is not limited to: the ability to make a positive adjustment to incarceration; the realities of incarceration; capacity for redemption; remorse; vulnerabilities related to mental or physical health; explanations of patterns of behavior; negation of aggravating evidence regardless of its designation as an aggravating factor; positive acts or qualities; responsible conduct in other areas of life ( e.g ., employment, education, as a family member, etc.); any evidence bearing on the degree of moral culpability; mercy; and any other reason for a sentence other than life.

As soon as possible and at the direction of defense counsel, the mitigation specialist must conduct in-person interviews of all relevant persons, including the child client and other relatives and community members who may be able to provide pertinent information about the child’s life, including, but not limited to, parents, siblings, grandparents, social workers, teachers, coaches, doctors, therapists, and other medical providers relevant to the child client’s life, and multi- generational family history that enable defense counsel to develop and implement an effective mitigation strategy for sentencing. In many instances,

 history of maltreatment or neglect, and/or involvement in the child welfare system;  multi-generational family history;  employment and training history;  pediatric/medical history, including history of genetic disorders and vulnerabilities;  mental health history;  physical health history;  exposure to harmful substances in utero and in the environment;  history of physical or sexual abuse;  history of substance abuse;  gang involvement;  religious, gender, sexual orientation, ethnic, racial, cultural, and community influences; and  socio-economic, historical, and political factors.

The mitigation specialist also must collect existing relevant demonstrative evidence that humanizes and positively portrays the child client, including, but not limited to, photographs, videotapes, letters of reference, schoolwork, and awards.

Defense counsel and the mitigation specialist must inform all parties—including the child client, the child client’s caretaker(s), the prosecution, and the court— that the mitigation investigation is an extremely time-consuming, labor-intensive, and lengthy process.

4.3 MITIGATION STRATEGY DEVELOPMENT

The mitigation specialist must assist defense counsel in developing a comprehensive and cohesive mitigation case. The mitigation specialist must be able to synthesize investigative information for the defense team, including, but not limited to, the creation of genealogies, chronologies, social histories, and studies of the cultural, socioeconomic, environmental, political, historical, and racial influences on the child client. The mitigation specialist also should aid defense counsel in the selection and preparation of witnesses who will testify for purposes of presenting mitigating evidence. As necessary to the mitigation investigation and strategy development, the mitigation specialist should identify and recommend other relevant specialists and experts and provide social history information to experts to enable competent and reliable evaluations.

PART 5: SENTENCING

5.1 PRESENTATION OF MITIGATING EVIDENCE

Defense counsel should consider litigating for a bifurcated sentencing hearing, including a jury determination at sentencing. Defense counsel’s mitigation presentation at sentencing should include, but is not limited to: the circumstances of the offense, including the extent of the child client’s participation and the impact of peer and familial pressure; incompetencies associated with youth, including the child client’s inability to deal with police officers, prosecutors, or defense counsel; the child client’s reduced culpability due to age and capacity for change; and other relevant life history identified during the mitigation investigation.^8

Defense counsel must determine the manner in which mitigating evidence will be presented, including, but not limited to, lay witness testimony, expert witness testimony, demonstrative evidence, affidavits, records, and reports.

5.2 WITNESS TESTIMONY FOR MITIGATION

Defense counsel’s mitigation presentation should include expert witness testimony on adolescent development, including, but not limited to: youth brain development, youth impetuosity, youth immaturity, youth inability to assess risks and consequences, youth intellectual capacity, youth susceptibility to familial and peer pressure, and youth capacity for reform. Expert witnesses may include, but are not limited to, medical doctors, psychiatrists, psychologists, academics, social workers, forensic experts, correctional or prison experts, gang experts, and others with a particularized knowledge of adolescent development.

Mitigation should include lay witness testimony on the child client’s particular development and functioning, family and home environment, community environment, peer and social network, behavior patterns, and any other relevant life history that may explain or diminish the child client’s culpability. Lay witnesses may include, but are not limited to, the child client’s family, friends, teachers, coaches, classmates, employers, co-workers, social workers, social service providers, treatment providers, neighbors, religious leaders, and community members.

(^8) See Miller , 132 S.Ct. at 2468.