Written by attorney Robert Marshall Sanger


Robert Sanger is a Certified Criminal Law Specialist and has been a criminal defense lawyer in Santa Barbara for over 37 years. He is a partner in the firm of Sanger & Swysen. Mr. Sanger is an Officer of California Attorneys for Criminal Justice (CACJ) and is the Co-Chair of the CACJ Death Penalty Committee as well as a Director of Death Penalty Focus and a Member of the ABA Criminal Justice Sentencing Committee. This was originally published by Mr. Sanger in the CACJ Forum Magazine, Summer 2010. Introduction Trial lawyer members of CACJ as committed defenders abhor IAC, or "ineffective assistance of counsel." We do everything we can to avoid IAC and, proactively, we use the specter of reversal for IAC in order to secure proper funding and support. IAC is, of course, based on the requirements of the Sixth Amendment to the United States Constitution which provides that the accused has a right to counsel -- counsel that is not only present but also effective. Under Ake v. Oklahoma, the United States Supreme Court stated that the right includes the right to have experts and investigators. Since Ake, there has been much litigation, particularly in capital cases, regarding the right to have the use of such experts to do an effective job. With regard to investigators, in particular, there has been much said, particularly in the context of capital litigation. However, most recently, the California courts have made it clear that there is not only a right to use an investigator but that there is a duty to do so in just about every case, including "garden variety" drug cases and misdemeanors. Furthermore, the duty falls squarely on the individual trial lawyer and it is no defense that the lawyer cannot afford an investigator or that her or his contract or agency does not provide for funding. This places a burden on the individual lawyer in each case to stand up and insist on having an investigator or to withdraw from the case. But it also provides an opportunity for contract, appointed or public defender lawyers to insist on, and obtain, these needed services. These cases impose obligations on the governmental agencies, including the County Board of Supervisors, and the public, to provide effective assistance of counsel by insuring that there are adequate investigative services available of all types of criminal cases. Standards of Practice Relating to Investigation In In re Edward S. last year, the Court of Appeal held that appointed counsel, including the Public Defender, has the duty to defend a case vigorously and to investigate all defenses. It is not an exception to that duty to say that the office will not provide money for experts or other resources. In the case of the Court held that that the lawyer assigned to a juvenile was incompetent as counsel where he did not follow up on defenses and employ experts. In this article, we will look at the more specific question of whether it is ineffective assistance of counsel - IAC - to fail to have an investigator on the case. We remember Paul Drake, often sitting on the credenza behind Perry Mason's desk while the two of them and Mason's legal assistant, Della Street, discussed their case strategy. Drake was in on every case and, whatever the theatrics of the Perry Mason television episodes, in each one of them, Paul Drake went out into the field and investigated. Of course, Perry Mason was the fictional creation of Erle Stanley Gardner. But Gardner was a real lawyer who practiced in Ventura. Gardner created a group called the "Court of Last Resort" where he got together investigators, forensic experts, lawyers and even a prison warden to review cases where a miscarriage of justice might have occurred. Their work resulted in stunning reversals of convictions. They were cases in which the trial lawyer did not investigate properly. Gardner did not allow that to happen in his fictional accounts. Since the days of the Court of Last Resort, there have been other advocates for the wrongly convicted. The most famous and most prevalent currently is the Innocence Project started by Barry Scheck and Peter Neufeld and now a feature around the country often associated with major law schools. The common theme is the reinvestigation of cases which were not investigated properly by the defense. The Death Penalty Information Center reports that from 1978 to present, there have been 138 persons exonerated and released from death row. The number of other people on death row who were wrongly convicted will never be known and the number of people wrongly convicted of non-capital cases is probably staggering. The causes of the wrongful convictions include faulty eye-witness identification, jail house snitches, prosecutorial or police misconduct, false confessions and other things. But most wrongful convictions are the result of a combination of factors, including IAC. And, at the core of IAC is the failure of the defense lawyer to investigate some part or all of the case. The United States Supreme Court in Wiggins v. Smith reiterated the constitutional requirement that the defense lawyer not only use an investigator in capital cases but that the investigation be thorough. This requirement applies to appointed and to retained counsel. The obvious corollary to the enunciated principle of thorough investigation is that defense counsel has to obtain the services of an investigator, and usually more than one, in capital cases. Whether retained, appointed or designated as counsel of record in a capital case, the lawyer must have investigation services. The Court has made it clear that it wants counsel to investigate the first time around and not to leave the matter for reinvestigation later. So, the standards of practice are well established and the real equivalent of the fictional Paul Drake is mandatory these days in capital cases. Standards of Practice Relating to Investigation in Non-Capital Cases Few private lawyers or law firms have full time in-house investigators. To the extent that a private lawyer uses an investigator, the investigator is usually hired on an hourly or per-case basis. Appointed counsel often do the same. In some counties, lawyers get together and contract to provide indigent defense services or to provide such services for cases in which the Public Defender has a conflict of interest. Sometimes such contracting lawyers have a designated investigator and sometimes they contract on an as needed basis. Public Defenders generally hire a staff of investigators to assist the lawyers but investigative services are a limited resource which may be allocated on some sort of priority basis. Judges and practitioners in the criminal courts throughout the state are well aware that there are lawyers who appear regularly and who seldom employ an investigator - some never do. There are other lawyers who employ investigators in a greater percentage of their cases but not in most of them. There are appointed lawyers who individually or as members of a group do not budget for investigators for many cases. There are Public Defenders whose Board of Supervisors has not provided adequate funding for investigators as needed and they, too, have to ration investigative services, sometimes making arbitrary decisions. The fact is that the individual lawyers handling cases in these situations may fall below the standards of practice. Contrary to what is often happening, it is necessary to employ an investigator in the vast majority, perhaps almost all, criminal cases. It is not sufficient, for instance, for the lawyer to take her or his own photographs of the scene or to rely on a friend of the accused to do so. It is not sufficient to say that the issue at hand can be raised in a garden variety suppression motion, for instance, and then proceed to a hearing to cross-examine the police officers without interviewing all other witnesses present at a stop and search. It is not sufficient for appointed counsel to say that their contract group has limited resources for investigation and that they cannot afford to hire an investigator in certain kinds of cases. And, it is not sufficient for Public Defender offices to say that they can only delegate investigative services to violent felonies or that their lawyers will have to do without an investigator in some cases due to lack of budget. It is also not sufficient for private practitioners to be retained on criminal cases and to not use the services of an investigator. Our law firm has a full time investigator on staff and, in addition, we contract with a number of other outside private investigators. We take the position that every case, even a garden variety misdemeanor, is a candidate for investigation. There are few cases where there is truly no factual issue on anything and we can rule out investigation. Our firm is not alone in this practice. To have an investigator or investigators available at al times and to be involved in almost every case is now the legal standard in California for all criminal cases. As we will see, having Paul Drake in on each case is not just a theatrical touch, it is constitutionally required and anything less is IAC. Continued -- see Part 2

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