This comment is submitted on behalf of the State Capital Post Conviction Public Defender. We do not believe that the proposal will meaningfully expedite the processing of capital post conviction cases and that the proceeding will waste the time of Court and counsel because it will not be meaningful if there is no reason to attend the conference other than the fact that it is mandatory.
1. The Capital Case Oversight Committee has made substantive and meaningful recommendations to try to resolve the systemic problems with the processing of capital cases, most importantly, seeking changes to attract more counsel willing to represent death row inmates in post conviction proceedings. Unfortunately, for various reasons, many of those recommendations have not been implemented and the problems persist. We believe that this particular recommendation, the creation of a non-meaningful mandatory informal conference does not address the systemic problems facing the State of Arizona in capital post conviction proceedings and will, in our opinion, do little, if anything at all, to expedite the post conviction process.
2. The current rule already provides for an informal conference if and when any party requests one. When this proposal was discussed during a Capital Case Oversight Committee meeting, it was noted that the parties historically have not asked for informal conferences. If the Court or any party believes an informal conference will help expedite the proceedings, there is mechanism available to all. The proposal, therefore, is simply unnecessary.
3. The proposal states that the conference shall be held “within 90 days” after appointment of counsel. It sometimes takes that long to acquire the various files from prior lawyers, mitigation specialists, and investigators. At that point, the files need to be reviewed for completeness (they rarely are and supplemental requests need to be generated). Once the record and non-record materials (e.g. police reports, work notes, correspondence) are obtained, the time consuming task of reviewing the files (one of the first steps in the post-conviction process) starts. As a result, there will generally be nothing meaningful to discuss within ninety days of appointment. Defense counsel will simply not be in a position to meaningfully “establish, but only to the extent possible, a general schedule for future pleadings.” Petition, p. 3. Nor will defense counsel be able to “identify the issues that would need to be resolved” because it takes more than ninety days to investigate and develop the issues that will be raised in post conviction.
4. The petition suggests that the conference can be used to “obtain any preliminary assistance from the court that might be appropriate in securing records. . .”. Assuming arguendo that counsel is sufficiently knowledgeable about the case to know what is needed, it has been our experience that the Superior Court will not consider ex parte requests for assistance in securing records or resources in post conviction cases. See State v. Apelt, 176 Ariz. 349, 365, 861 P.2d 634 (1993). Although Apelt was decided prior to the incorporation of the performance standards of the ABA Guidelines by the Arizona Supreme Court and represents a minority position amongst the States which have considered the issue, it is still relied upon in post conviction proceedings.
Conscientious defense counsel, therefore, will not announce their investigation strategies and tactics to the Court and the prosecutor but, rather, will seek the information they need on their own. Cf. ABA Guideline 10.4, the commentary to which states that it is counsel’s obligation to “insist on making [resource] requests ex parte and in camera” in order to avoid the disclosure of privileged communications or strategy to the prosecution. A party should have the right to obtain reasonably necessary resources or records without alerting his adversary to his investigative plan, his work product, counsel’s mental impressions, or, implicitly, the communications between attorney and client. See Miller, The Defense Team in Capital Cases, 31 Hofstra L. Rev. 1117, 1133 (2003) (counsel should make all requests for experts and funds ex parte; if not permitted, counsel should continue to litigate the issues to avoid revealing strategy).
5. Although not addressed in the proposal, should the Court determine there is value in a mandatory informal conference, the Rule should provide that the conference be recorded in order to ensure future record based review.
6. The Oversight Committee did not change the provision of Rule 32.7 which states that the defendant need not be present if counsel appears. It can be argued that the defendant has a right to be present at any mandatory conference, which, of course, could trigger a victim’s representative’s right to be present as well. The conference situs (chambers or courtroom), see petition, p. 4, does not denigrate a person’s right to be present, if it exists. It is beyond the scope of this comment to discuss whether or not the defendant, independent of the Rule, has a right to be present at a mandatory conference in a capital case, especially if Orders are to be entered (the petition suggests that no Orders will be entered but the proposed amendment does not address that issue). This question may need to be addressed and could complicate what is otherwise an unproductive proceeding in any event. If the mandatory conference is indeed not meaningful, as we believe, and the procedural issues complicate the proceeding, the public will perceive the proceeding and, therefore the system, as wasteful.
Respectfully Submitted this 20th day of May, 2009.
s/ Martin Lieberman
State Capital Post Conviction Public Defender
3443 N. Central, Ste. 706
Phoenix, AZ 85012