Louisiana Administrative Code › Title 22 - CORRECTIONS, CRIMINAL JUSTICE AND LAW ENFORCEMENT › Part XV - Public Defender Board › Chapter 21 - Performance Standards for Attorneys Representing Juveniles in Life without Parole Cases › Section XV-2133 - Special Circumstances

Current through Register Vol. 50, No. 6, June 20, 2024
A. Duties
				of Counsel at Re-Trial
The standards for trial level representation apply fully to
				  counsel assigned to represent a client at a re-trial of the guilt or sentencing
				  phase. Counsel should be careful to clarify on the record the status of prior
				  rulings made and orders issued in the proceedings. Where appropriate, counsel
				  should seek to renew and re-litigate pre-trial claims, and to raise any new
				  claims which have developed or been discovered since the first trial. Counsel
				  should not rely on the investigation or presentation of evidence from the first
				  trial, but rather should start anew and seek to develop and present all
				  available evidence, with the knowledge gained from the results of the first
				  trial. Except in circumstances where counsel has substantial reason to believe
				  the results will be different or no other witnesses are available, counsel
				  should not present witnesses who provided unhelpful testimony earlier in the
				  case.
B. Continuing
				Responsibility to Raise Issue of Clients Incompetence
1. Competence is a common issue for a
				juvenile facing a possible sentence of life without parole due to age and its
				attendant circumstances, including adolescent brain development, the nature of
				the charge, complexity of the case and the gravity of the decisions with which
				the client is faced. As a result, counsel should proceed with increased
				sensitivity to the question of competency and ensure that the defense team has
				members with sufficient skill and experience to identify and respond to issues
				relating to competency.
2. Counsel
				should be sensitive to the increased risk that, given the nature of the charge,
				the complexity of the case, the unique nature of the sentencing hearing, and
				the possibility of a life without parole sentence, a client may not
				sufficiently understand and appreciate: the nature of the charge and its
				seriousness; the defenses available at guilt and sentencing phase and how each
				affects the other; the consequences of each available plea on both guilt and
				sentencing; and, the range of possible verdicts and the consequences of those
				verdicts at guilt and sentencing.
3. In considering a juvenile clients ability
				to assist counsel in a JLWOP case, counsel should have particular regard to the
				requirement that the client be able to assist counsel not only as to the guilt
				phase but in the development of the mitigation case and the presentation of the
				sentencing phase case; a process that will include an exhaustive investigation
				of the clients character, history, record, the offense and other factors which
				may provide a basis for a sentence less than life without parole. The
				possibility of a sentence of life without parole and the necessity to prepare
				for and present a sentencing phase case greatly increase the complexity and
				weight of the demands placed upon the client in assisting counsel, including
				considerations of whether the client: is able to recall and relate facts
				pertaining to his actions and whereabouts at certain times; is able to maintain
				a consistent defense; is able to listen to the testimony of witnesses and
				inform counsel of any distortions or misstatements; has the ability to make
				simple decisions in response to well explained alternatives; is capable of
				testifying in his own defense; and, is apt to suffer a deterioration of his
				mental condition under the stress of trial or at a later stage of the
				case.
4. Counsel involved in a
				juvenile life without parole case at stages following the trial should be alert
				to additional concerns regarding the clients mental state, functioning and
				ability including existing issues that could be exacerbated by the reality that
				a life without parole sentence has been imposed, as well as by the effects of
				confinement on a juvenile, particularly prolonged confinement, such as the
				development or progression of depression or other mental illnesses. Similarly,
				counsel at later stages should have particular regard to issues such as the
				clients ability to establish relationships with new counsel at later stages in
				the case, especially where earlier relationships were difficult for the client,
				and the clients ability to assist counsel with tasks such as investigations
				taking place years after the trial when deficiencies such as memory loss may
				become more pervasive.
5. In every
				JLWOP case, counsel should conduct a thorough, sensitive and ongoing inquiry
				into the competence of the client. Where concerns exist about a clients
				competence, counsel should ensure that the defense team documents in the
				clients file observations and interactions relevant to the clients
				competence.
6. Recognizing that
				raising competency may expose the client himself and otherwise confidential
				information to state actors, counsel should not raise competency unless
				satisfied that: a sufficient investigation has been conducted to make a
				reliable strategic decision in this regard; the client is likely not competent;
				and, the benefits to the client of raising competency outweigh the negatives.
				Counsel should consider the possibility that any information disclosed in
				competency proceedings will become admissible at trial as a result of the
				clients mental health being placed in issue.
7. In considering whether to raise
				competence, counsel should take into account all relevant circumstances,
				including: the likely outcome of an assessment by a sanity commission; the
				likely outcome of an assessment by a state expert; any negative findings,
				including malingering findings, that may arise from an assessment of the
				client; any negative information that may be divulged to the state from a
				review of records; any waiver of confidentiality arising from raising
				competence; the impact upon counsels relationship with the client and his
				family of raising competence; the impact of raising competence before or during
				trial on any subsequent guilt or sentencing phase presentation; and, the effect
				on any subsequently available claim that the client was incompetent.
8. The delay caused by raising a question of
				competence with the court is not a proper reason for raising competence.
				Seeking to defray defense costs by having a court appointed mental health
				examination is not a proper reason for raising competence.
9. Prior to raising competence with the
				court, counsel should consult with a defense mental health expert, including
				having the expert review the available information and records relating to the
				client and, where appropriate, assessing the client.
10. Counsel should fully advise the client
				concerning the procedures for mental examinations, the reasons competence is in
				question, the possibility of hospitalization, and the consequences of an
				incompetency determination.
11.
				Where the court or the state raises the issue of competency, counsel should
				consider whether it is appropriate to resist any competency examination or
				advise the client not to cooperate with any such examination.
12. Where a sanity commission is appointed,
				counsel should ensure that the members of the sanity commission are independent
				and appropriately qualified to evaluate an adolescent. Counsel should ensure
				that the scope of any examination is limited to the proper purposes for which
				it has been ordered. Counsel should consider seeking to be present, have a
				defense expert present or have recorded any examination of the client. Counsel
				should consider which records and witnesses, if any, should be identified and
				made available to the sanity commission.
13. Where the state seeks an examination of
				the client by a physician or mental health expert of the states choice, counsel
				should consider opposing or seeking to limit such an examination and should
				also consider whether to advise the client not to cooperate with any such
				examination. Counsel should ensure that the scope of any examination is limited
				to the proper purposes for which it has been ordered. Counsel should consider
				seeking to be present, have a defense expert present or have recorded any
				examination of the client. Counsel should consider which records and witnesses,
				if any, should be identified and made available to the states expert.
14. Counsel should obtain copies of: each
				examiners report, all underlying notes and test materials; and, all records and
				materials reviewed. Where the client is hospitalized or otherwise placed under
				observation, counsel should obtain copies of all records of the hospitalization
				or observation.
15. Counsel should
				not stipulate to the clients competence where there appears a reasonable
				possibility that the client is not competent. Counsel is not obligated to
				develop frivolous arguments in favor of incompetency but must investigate and
				advocate in a way that ensures that there is meaningful adversarial testing
				where there is a good faith basis to doubt the clients competency.
16. At the competency hearing, counsel should
				protect and exercise the client's constitutional and statutory rights,
				including cross-examining the sanity commissioners and the state's witnesses,
				calling witnesses on behalf of the client including experts, and making
				appropriate evidentiary objections. Counsel should make sure that the inquiry
				does not stray beyond the appropriate boundaries. Counsel should consider the
				advantages and disadvantages to the clients whole case when determining how to
				conduct the competency hearing.
17.
				Counsel may elect to relate to the court personal observations of and
				conversations with the client to the extent that counsel does not disclose
				client confidences. Counsel may respond to inquiries about the attorney-client
				relationship and the client's ability to communicate effectively with counsel
				to the extent that such responses do not disclose confidential or privileged
				information.
18. If a client is
				found to be incompetent, counsel should advocate for the least restrictive
				level of supervision and the least intrusive treatment.
19. Where competency is at issue, or where
				the client has been found incompetent, counsel has a continuing duty to
				investigate and prepare the case. Where a client has been found irrestorably
				incompetent, counsel should continue to investigate and prepare the case
				sufficiently to ensure that the client will not be prejudiced by any delay or
				hiatus in the preparation of the case should he subsequently be returned to
				competence and the prosecution resumed.
20. A previously competent client may become
				incompetent over the course of a case and particularly under the stress of
				hearings and trial. Counsel should be vigilant and constantly reassess the
				clients competence and be prepared to raise the matter when appropriate. It is
				never untimely to raise a question concerning a clients competence.
21. Some clients object strenuously to taking
				psychotropic medication and counsel may be called upon to advocate for
				protection of the clients qualified right to refuse medication.