II Re-inventing the Case, Within and Outside of the Record

• Library: Post-Conviction Practice: A Manual for Illinois Attorneys (2012 Ed.)

II. Re-Inventing the Case, Within and Outside of the Record

Re-investigation is likely to be the most important thing you will do for your client's post-conviction petition. In the legal field, where systemic attacks on factual findings are met with hostility, expanding the record through a thorough investigation is necessary to build a strong case for your client. Your ultimate goal in investigating at the post-conviction stage is to take the facts and develop issues that might result in a reversal of the conviction or a reduction in sentence. Without a thorough investigation, you cannot know enough about the case to be sure you have uncovered even a fraction of the potential issues.

During your investigation, maintain a delicate balance between focusing on developing issues and letting the facts unfold before you without preconceived notions about where they might lead. If your ideas about the issues are too inflexible, you risk missing information that would fruitfully lead you in another direction. On the other hand, because of restrictions under AEDPA and the post-conviction statute, time is often of the essence, and you need to have enough sense about potential issues to avoid wasting precious time. When re-investigating the case, holding these two ideas in equipoise is the challenge; you must believe both everything and nothing that you learn from the prosecution or witnesses on the street.

A. GET ORGANIZED NOW, NOT LATER

Before embarking on your investigation, develop an efficient system of indexing information so that areas you wish to pursue do not get lost in the shuffle. Doing this now will save you an enormous amount of time later on. Depending on the nature of your experience, perhaps you already have developed a system of recording and organizing information so that it is easily retrievable.

One method is to create two folders on your computer. One folder includes all notes on the transcript's content. Create a transcript outline or digest with page references to witnesses, important points in their testimony, every objection by defense counsel, and every objection by the state that was sustained. Also record where defense counsel should have, but did not, object.⁸ Although this step is time consuming, it will benefit you in the long run by enabling you to quickly reference key portions of the trial proceedings.

In the second folder, keep a running log of your questions for witnesses, areas to investigate, and potential claims. For each witness you want to interview, keep a list of last known addresses, substance of testimony, and future questions.

However you organize yourself, you should accept early on that you will need some kind of organizational structure so as not to overwhelm yourself with information. The forms in appendix II.E might be helpful as a guide as you create your own organization system.

B. WHAT ARE YOU LOOKING FOR?

When beginning the investigation, you are trying to both discover the "true" facts of the case, and to connect those facts to any legal claims that could warrant a reversal of the conviction or sentence.

The facts of the case break down into five main groups: (1) the facts of the defense attorney's pre-trial investigation and conduct of the trial; (2) the facts—in and out of court—surrounding the trial and appeal; (3) the facts of the crime; (4) the facts of law enforcement's investigation into the crime; and (5) the facts of your client's life, as they relate to sentencing.

1. The Facts of Defense Counsel's Pre-Trial Investigation and Conduct of the Trial

Unfortunately, one cause of wrongful convictions is the performance of defense counsel. In some cases, lack of experience or overwhelming caseloads are to blame. In others, a lack of motivation, conscientiousness, or resources leads to a wrongful conviction. In many others, actions by the state and law enforcement prevent a full and zealous defense. The denial of funds, denial of a continuance, or withholding of discoverable material until the last moment can all effectively prevent counsel from functioning competently.

An investigation into the facts of defense counsel's pre-trial investigation and conduct of the trial has two basic goals: (1) to determine whether the attorney provided effective representation; and (2) to determine whether the defense preparation or presentation was impeded in any way by the state. There are many ways to approach these questions and to some degree, what you find out about the case will determine some of them.

Some issues will be obvious, such as the failure to file an obviously relevant motion to suppress identification (where, for example, a tentative identification is made at a line-up). During the course of your investigation, be alert for leads on new, unexpected issues. For example, perhaps a witness tells you the identification was tentative and that an officer reassured her she had selected the "right guy." This opens a window for further investigation into the police conduct and identification procedures.

In analyzing defense counsel's conduct, you should thoroughly read the record, the police reports, and examine the trial lawyer's file itself. As you sift through the legal issues discussed below in section Ill, determine whether the trial lawyer properly preserved the issue. Did he or she object? Was the objection the correct one? Was the federal basis of the objection made?

When you look through the attorney's file, determine whether there was an investigation plan. What about investigation memoranda or notes? Does your investigation reveal the holes in the investigation that was done (or sadly, too often not done) by the trial lawyer? Don't forget the electronic part of the file too—most of us now scan much if not all of the file, and keep documents on our computers sometimes in addition to or sometimes instead of in a physical file. Remember the legal questions that should act as a filter here: did the attorney's representation fall below the professional norms? And if so, is there prejudice?

Courts will nearly always defer to an attorney's strategic choice, but a strategy cannot be developed in the absence of vital information. Trial counsel's failure to investigate almost certainly indicates that the decisions made were in violation of a defendant's right to effective assistance of counsel. By this we do not mean that counsel failed to conduct exhaustive investigation, which is what you will do in your own investigation, but rather a reasonable investigation. Did the defendant tell his attorney about an alibi? If so, did the lawyer check it out? Were there eyewitnesses to the offense (or a part of it) who were not interviewed? These are the sorts of questions you should be asking yourself. And do not forget that the defendant has the right to a reasonable professional investigation not only as to trial issues, but as to legal and sentencing ones as well.

Analyzing whether the attorney provided effective assistance from a purely legal point of view is difficult to ascertain. Nonetheless, look to see if the record or the trial lawyer's file reflects a misunderstanding of relevant statutes or case law. For example, Illinois adopted the Illinois Rules of Evidence in 2011, and lawyers and judges are just getting used to them, as Illinois previously relied solely on case law. Does the record reflect the requisite familiarity with these rules?

All of these questions require a side-by-side comparison of what was done with what could have been done.

2. The Facts Surrounding Trial and Appeal

An investigation into the facts that surrounded the trial and appeal often reveals the atmosphere in which the case was tried, or important actions or omissions by counsel or others that do not necessarily appear in the record. Some unrecorded facts typically include the shackling of the defendant, the appearance of the defendant in prison garb, excessive security in the courtroom, actions by the victim or victim's family that would have prejudiced the jury, the absence of the defendant at crucial stages of the proceedings, a prevailing community sentiment of hostility based on the defendant's, the complaining witness's, or the victim's race, gender, sexual orientation or religious affiliation, or even non-record evidence considered by the appeals court.

The possibility of juror misconduct must also be investigated, as discussed more fully below in section Ill part C. Did the jurors conduct their own investigation? Was there some other sort of extraneous information that was a part of their deliberations? While it is not proper to "impeach" the verdict, interviewing jurors sometimes uncovers important incidents of misconduct, which helps to determine the kind of investigation you should conduct on the facts. If there were questions the jurors had that they wanted answered, maybe your investigation should look in that direction. All of these issues might constitute reversible error and should be thoroughly investigated.

3. The Facts of the Crime

An investigation into the facts of the crime is designed to determine: (1) whether your client was the perpetrator; and, if so (2) whether he committed the act with the requisite mental state; or (3) if he is in fact the perpetrator of the crime, what his level of responsibility was.

An investigation into the facts of the crime is necessary when a client claims he is absolutely innocent, that he had a lesser degree of culpability, or that he had an affirmative defense. But, it is also necessary when your client admits full responsibility. A person will sometimes accept responsibility even though he was not fully culpable for many reasons. Perhaps he is protecting someone he loves from prosecution, he is in fear of a co-defendant with whom he is incarcerated, he is mentally ill and accepts what others have told him about his behavior, he is unable to act in his own best interests, or he is misleading you for a host of other reasons. Moreover...