Saturday, February 16th, 2019


9:00am - 10:30am

Plenary: Legal Developments

Michael
Ogul
Mark
Olive
Wendy Peoples

The Tenth Annual Lawbies Awards Show. Back by popular demand, this session will discuss the most important legal developments of the past year, including our candidates for the best, worst, and most noteworthy of these opinions. In addition to describing important rulings, the presenters will also provide practice tips on how to effectively litigate these issues in future cases. The written materials provide comprehensive summaries of state and federal cases that affect capital defense in the trial and appellate courts. Awards will be based on voting by the audience.

Plenary: Non Lawyer

Russell
Stetler
Cassandra Stubbs

This session will provide an overview of the important developments in death penalty cases over the past year, both in California and nationally. The survey of recent developments will include the impact of Prop 66 in California and the Trump administration on cases in federal court, significant trends nationally, and a summary of California cases in the appellate and post-conviction courts. There will be a discussion of the changing world of mitigation specialists (more institutional jobs, but continuing struggles to obtain adequate funding). The session will also discuss impact litigation undertaken by the ACLU capital punishment project and why that project has targeted some California counties that are nationally recognized for their high rates of death sentencing.

10:45am - 12:00pm

Batson

Elisabeth
Semel
Cliff
Gardner

The speakers have extensive experience litigating Batson issues in the state and federal courts, particularly in death penalty cases. They will discuss recent developments and trends in judicial opinions, new rules that replace Batson, and creative approaches to frequent stumbling blocks: making a record about the venire's composition; rebutting demeanor-based reasons; combating judicial speculation; constructing a persuasive comparative juror analysis; what to do when a court believes that one race-neutral reason cancels out any and all race-based explanations; and practical considerations in arguing a Batson motion before the state supreme court.

Cultural Competency I

Expert to be
Announced

Cultural competence is essential for defense team functioning in capital cases. Cultural competence can be loosely defined as the ability to understand, appreciate and interact with people from cultures or belief systems different from one's own. This session will provide an overview of issues to consider in creating and maintaining culturally competent teams. It will also address obstacles, assumptions and expectations that interfere with cultural competency and provide strategies for dealing with these barriers to understanding and working with clients.

Crawford/Sanchez

Kathleen Guneratne Lisa
Romo

2018 saw a flurry of cases interpreting and applying People v. Sanchez (2016) 63 Cal.4th 665, in which the California Supreme Court radically changed how basis evidence relied upon by expert witnesses is analyzed under state hearsay law and the 6th Amendment Confrontation Clause. Kathleen Guneratne and Lisa Romo will review the year’s events and discuss how they impact the presentation of various types of prosecution and defense expert witnesses. They will also discuss potential strategies for expert cross-examination under the Sanchez paradigm.

Creative Motions and Jury Instructions

Marc
Bookman
Scott
Sanders

The speakers will describe how to exploit recent Supreme Court cases in terms of creating special jury instructions, and will also analyze errors in pre-trial litigation that have implications for the guilt and sentencing phases, as well as appeal. Additionally, the session will dive into revelations that the nation’s largest provider for inmate phone services recorded and shared with law enforcement thousands of client calls to counsel made within the Orange County jails and elsewhere, and will discuss motions that can be created in your jurisdiction to force litigation of these issues.

DNA: Complex Mixtures

Bicka
Barlow
Expert to be
Announced

Complex mixtures are a common feature of modern DNA testing and are subject to attack by the defense. This session will focus on the nature of complex mixtures and the difficulties of interpreting this type of data. This year this session will cover both scientific issues and legal strategies for attack. The session will be most beneficial to trial and post-conviction lawyers but investigators may also find the information presented useful to their practices.

Effectively Investigating Medical Dependent Cases: Lessons from the Benavides Exoneration

Cristina
Bordé
Mara
Tobis
Expert to be
Announced

Mr. Benavides was exonerated and released from death row in April of 2018 after spending over 25 years incarcerated for a crime he did not commit. In this session, Mr. Benavides's attorney, Ms. Bordé, and his investigator, Ms. Tobis, will discuss the methods used and lessons learned from investigating the medical evidence of child physical and sexual abuse in the case. A key pediatric expert in the case, will provide advice on how attorneys can most effectively consult with medical experts in legal cases.

Finding the Story in Your Case

Richard
Jasper

Mitigation Interviewing

Jenny
Merrigan
Courtney
Bell

Come and learn the fundamentals of mitigation investigation through the lens of an experienced capital defense attorney and a mitigation specialist. We will provide what it means to conduct a thorough, reliable, multi generational, biopsychosocial, mitigation investigation and the tools necessary to do so. Every reliable mitigation, or social history, investigation depends on a trusting relationship with your client, relies on multiple documentary sources, and lay history interviews, with witnesses that span over the course of your client and his or her families' lives. Sound easy? It's not, but as a community we must come together, provide help, direction, and resources from others who have done this before and done it well!

Neuropsychology: Basics & Norms

Julie
Brain
Expert to be Announced

A competent and thorough neuropsychological assessment is a necessary component of understanding our clients’ life histories. This session will discuss the kinds of experiences and exposures that make our clients uniquely vulnerable to a range of cognitive deficits and impairments. It will also describe the elements of a comprehensive neuropsychological evaluation. Presenters will discuss issues about norms and address questions about malingering. Finally, the session will include information about relationships between brain impairments and behavior, and provide suggestions about how to best present neuropsychological deficits in trial and in post-conviction. This session is designed for trial and post-conviction attorneys and mitigation specialists.

A Pathologist’s Review of Homicidal Violence

Bob
Sanger
Expert to be
Announced

We will review the types of homicidal violence most often seen by the pathologist. This will include gunshot wounds, stab wounds, blunt force injury including head trauma and asphyxia including strangulation.

Understanding Language Impairment

Michele
LaVigne
* This session repeats on Sunday at 10:30am

"Many/most of our clients have language deficits. So do many of their family and friends. That does not mean that these individuals can’t speak or communicate at all. But they do have a constellation of impairments that can interfere with their ability to effectively communicate, control their behavior and function in society.

The ramifications of language impairments are extraordinarily well-documented. Language impairments have been connected with low literacy, academic failure, psychological and psychiatric disorders, conduct disorders, and poor social functioning. Not surprisingly, these individuals are over-represented in the juvenile and criminal justice systems. And as we might expect, these individuals have trouble with every aspect of the criminal justice system from interactions with law enforcement to the attorney-client relationship to post-dispositional adjustment.

Language impairments present challenges and opportunities for attorneys, because, to put it simply, they have everything to do with everything. Whether the attorney is attempting to elicit the client’s narrative, suppress statements, or construct a case for mitigation, a client’s language impairments loom large. This presentation will provide an overview of language impairments and their legal, behavioral, and social implications."

PC: Identifying and Working with Experts

Mark
Drowdowski
Shelley
Sandusky

Consulting with and presenting testimony by experts is often necessary to win relief in state or federal post-conviction. This session seeks to help habeas lawyers identify appropriate experts for their case and discuss strategies for effectively working with experts to produce useful declarations and in-court testimony. We will discuss the different types of experts used in habeas but focus on experts used to support common mental-health-based claims at the guilt-phase and at sentencing.

PC: AEDPA Primer

Tim
Foley
Margo
Rocconi

This session provides an overview of the key provisions of the Antiterrorism and Effective Death Penalty Act of 1996 (e.g., statute of limitations, 2254(d)'s constraint on habeas relief, the exhaustion requirement), and relevant cases and developments. The presentation is targeted towards introducing AEDPA newcomers to the main issues.

1:30pm - 2:45pm

Assessing Adaptive Functioning Deficits: Using Instruments

Robert
Sanger
Expert to be
Announced

Adaptive functioning is one of the three prongs of the test for Intellectual Disability under Atkins. Anyone with a potential Atkins case needs to be up to date on the instruments that can be used by professionals to aid in forming the clinical judgment that a person does or does not meet the criteria of adaptive functioning. The speakers will address how the various tests, like the Vineland Adaptive Behavior Scale and other current tests, meet the needs of the clinician under the present law.

Discovery Issues & Preparing Investigation Reports

Jack
Earley
Scarlet
Nerad

Getting all the information a witness knows is the goal of every interview but is easier said than done. Many issues can only be uncovered with great sensitivity, some witnesses require delicate handling, and hostile witnesses present their own challenges. No one approach works for all witnesses. And once we learn what the witness has to offer, the question becomes how to best document the information without unwittingly damaging the defense case for life. The presenters, a mitigation specialist and a trial attorney, will discuss both interviewing issues and reporting methods, including a consideration of our obligations to disclose information to the prosecution. This session is intended for all members of the defense team.

Early Childhood: Brain & Psychological Development

Kathy
Wayland

Children’s experiences during the first five years of life set the stage for lifelong cognitive, social, emotional and behavioral development and functioning. Yet clients have little to no memory of this critical time, so we must rely on other avenues to investigate and develop information. This session with provide you with information and tools to investigate these foundational years, through informed review of records and interviews with family members and other witnesses. This information will help you develop a compelling narrative of the early years that most influence lifelong mental health and social functioning. This session is designed for trial and post-conviction attorneys and mitigation specialists.

Exposing Race Bias in Voir Dire

Henderson
Hill

Race issues pervade capital cases and bigoted jurors continue to survive the voir dire process when defense counsel are reluctant to engage them on their prejudices. This workshop will provide practical advice on handling race bias in jury selection, including how to overcome our own reticence about confronting this tough issue.

Eyewitness Identification

Jennifer
Sellitti
Kathy
Pezdek

Eyewitness evidence is common in crimes, and it is often compelling and difficult to refute to triers of fact. Yet the growing field of scientific research on eyewitness memory - studies in controlled settings as well as real-world cases - illuminates copious eyewitness misidentifications and when these memory flaws are most likely to occur. Kathy Pezdek, Professor of Cognitive Psychology at Claremont Graduate University, will present an overview of recent scientific findings on factors that affect the accuracy of eyewitness memory. Jennifer Sellitti, Director of Training & Communications for the New Jersey Office of the Public Defender, will present on legal approaches related to eyewitness evidence and connecting the science to the courtroom advocacy.

Foreign Nationals & Immigrants in the Age of Trump

Courtney
Bell
Zandra
Lopez

Listen to the experiences and perspectives from an attorney and mitigation specialist working on a federal post-conviction case with a client from Central America, which is where the majority of the life history investigation took place. For the lay witnesses who resided in the United States, many were undocumented, adding yet another complication and barrier to disclosure. Learn from our experiences, both good and bad, and come away with helpful resources and guidance, especially in this particularly volatile climate of fear against clients who come from foreign countries, and particularly against Central American gang members.

Institutionalization as Mitigation

Expert to be
Announced

Many of the clients facing capital prosecution or on death row have had prior experiences with prisons both adult and juvenile. Those institutions purport to have a rehabilitative component but the harsh reality is that they can have devastating effects on the ability of inmates to function in outside society. In such cases, the jury has to be educated on the brutal reality of prison life. Understanding the manner in which the institutions further abuse the already marginalized is critical to presenting institutional mitigation to the jury.

Representing Military Members

Ed
Ungvarsky
Jude
Litzenberger

The representation of current and former U.S. Service members provides unique challenges and opportunities in identifying, developing, and presenting mitigation evidence. This session will provide a primer on how to investigate and present evidence of military experience. With regard to investigation, the presenters will address records collection, locating and interviewing witnesses, learning about possible "PTSD" and other mental health concerns, and the gathering of awards, photographs, and other documentary evidence in mitigation. With regard to presentation, the presenters will address the different potential audiences, including victims, the prosecutor, the judge, and the jurors, and effective ways to communicate to all decision-makers that a sentence less than death is appropriate. Through the presentation, the presenters will thematically address the need for cultural competency as it relates to this special background associated with the 1% of Americans who have served in our Armed Forces.

Signs and Symptoms of Mental Illness

Sean
O'Brien
David Freedman

American Bar Association Guideline 4.1.A.2 provides that “The defense team should contain at least one member qualified by training and experience to screen individuals for the presence of mental or psychological disorders or impairments.” This session will address signs and symptoms of mental illness that are most commonly present, and often misinterpreted or simply missed, by capital defense teams and mental health experts, and the importance of a thorough life history investigation to proper interpretation of lay and expert observations of our clients’ demeanor and behaviors.

The Unreliability Principle

Scott
Sundby

We tend to think we must prove a "national consensus" exists before we can make an Eighth Amendment challenge to the imposition of the death penalty on a class of defendants or crimes. The Court¹s decisions in Atkins and Roper, however, provide more of a basis for challenging the death penalty than is often recognized. This session will explore how those cases stand for the broader proposition that a death sentence cannot be imposed where reason exists to believe that the sentencer cannot reliably process the evidence underlying the mitigation. This session will examine the factors that Atkins and Roper identify as bringing the “unreliability principle” into play, factors such as a defendant¹s inability to cooperate with his attorney, the difficulty of assessing expert testimony, or the likelihood that a juror will treat the mitigation as an aggravator. The example of a mentally ill defendant will be used to see how these factors can be used to craft a motion to bar the imposition of the death penalty based on the unreliability principle.

PC: Prop 66: Litigation Developments

Nisha
Shah
Patricia
Young

The meaning and applicability of various Prop 66 provisions is being litigated across the state in various courts and in cases in a variety of postures. This session will discuss the status of litigation in the Courts of Appeal and California Supreme Court and identify issues likely to arise in the next year.

PC: Raising State Constitutional Issues

Elias
Batchelder
Chris
Spaulding

California Courts have long acknowledged that the California constitution is a document “independent force” and not simply a repetition of the United States constitution. At the same time, our state court has done relatively little to expand criminal defendant’s constitutional rights. But that (we hope) is going to change soon. Using two sample claims as practical examples, this session will discuss techniques for raising independent state constitutional claims, including when to raise them, sources to rely upon, and how to make the arguments stronger.

3:00pm - 4:15pm

Addiction: Drugs, Alcohol and the Brain

Bart
Sheela
Expert to be
Announced

Capital clients and their caregivers often have long histories of complex substance use. A rigorous literature shows that drugs and alcohol shape brain and emotional development and functioning in both clients and caregivers. Session presenters will discuss the effects of substance abuse on brain development and describe how substance use interferes with healthy parenting and social relationships. The session will also address how to develop and use evidence of substance abuse in a mitigating manner when developing the narrative of your client’s life.

Aggravation/Victim Impact

Tim
Foley
Katy
O'Donnell

Time and time again, victim impact is the most potent evidence in the prosecution’s arsenal at penalty phase. An aggressive comprehensive defense plan is necessary to combat and counter this compelling testimony and evidence. This session will discuss victim impact from a practical litigation point of view, including such topics as how counsel might prepare for, and investigate, prospective victim impact; how counsel might litigate discovery issues with regard to victim impact; how counsel must attempt to preclude, limit, or redact victim impact with extensive pretrial motions practice; how counsel must begin to prepare jurors for victim impact during the jury selection process ; how counsel might address victim impact during the trial phase; how counsel might argue victim impact at the close of penalty phase; and how counsel will litigate jury instructions pertaining to victim impact. This session is intended for all members of the defense team.

Building and Curating Police Misconduct Databases in California and Nationwide

Barry
Scheck

This session will focus on an ongoing nationwide effort to gather police misconduct information using powerful digital tools. It will review successful efforts to build defender and public databases in New York by the Legal Aid Society and in Chicago through the Invisible Institute and how this data has been used to obtain post-conviction relief in those jurisdictions and others. Special attention will be paid to efforts underway in California to obtain information under the newly passed Senate Bill 1421 and create comprehensive public and defender databases containing police misconduct information that can be effectively utilized by the defense bar, the public, and prosecutors to correct and prevent miscarriages of justice.

Dealing with the Media

David
Bruck
Matt
Gonzales

Like everything else that counsel does in a capital case, interacting with the press should be done for a reason, and with a clear and realistic goal in mind. Capital cases tend to attract press coverage, and that can feel intimidating and even overwhelming. This session will discuss how to slow this aspect of your case down until it can be treated like any other aspect of case preparation. We’ll discuss whether, when, how, and by whom the defense message should be presented, and the ethical constraints of defending your client in the media.

The Evolution of Forensic Science: Litigating the Admissibility of Pattern Impression Evidence

Jennifer
Friedman
Julia
Leighton

This presentation will provide an historical overview of reports and other literature criticizing pattern matching disciplines and courts’ responses to those criticisms. In addition to other literature, we will discuss landmark reports including the 2008 Ballistic Imaging Report, the 2009 NAS Report, the 2012 NIST Report, the 2016 PCAST Report and the 2018 AAAS Report. We will also discuss strategies to better leverage this literature in challenging pattern matching evidence in light of courts’ historical responses to it. Trial, Post-conviction lawyers and Investigators will benefit from this session

Intersectionality: How Race, Culture, Gender, and Other Dynamics Affect Your Capital Case

Dr. Nora Berenstain Dr. Elena Ruíz Robert
Sanger

This presentation addresses how the framework of intersectionality pertains to social and legal institutions including capital punishment. While intersectionality is sometimes construed as a theory of identities, it is fundamentally an account of how social structures of oppression interact to generate unfair processes for (and assessments of) members of particular groups. For instance, assumptions about offender and victim race and gender play a significant role in jury narrative reconstruction of the crime and their estimation of the harm and suffering involved. We will discuss the notion of intersectionality and capital punishment to offer another way to think creatively about case preparation and management.”

Litigating Pathology Issues

John
Philipsborn
Expert to be
Announced

Linking standards of practice to the work and opinion testimony of a forensic pathologist: Some recent capital case litigation has underscored the importance of being aware of, and using, standards of practice as well as published scholarship and research to address, and to exclude or limit opinion testimony from a forensic pathologist that is based 'informed speculation' about cause and manner of death or significant injury. An experienced lawyer who has successfully limited opinion testimony from medical professionals, and a highly experienced forensic pathologist and neuropathologist will review examples of problematic work and objectionable opinions from forensic pathologists and will suggest ways to prepare to respond.

Neighborhood Effects

Expert to be
Announced

Our neighborhoods play a significant role in our lives. From child to adulthood where we live is a factor in how we react to the world around us. One of the greatest challenges experts face when participating in capital defense mitigation is providing the jury with visual mitigating evidence. Sixty-five percent of the population are visual learners - so give them something to look at. Maps can literally provide a visual snapshot of what is happening in a defendant’s life and what mitigation factors influenced his/her life. Testimony aided by digital mapping provides a persuasive means for presenting complex, community risk factors for criminal violence such as poverty, exposure to violence, lead exposure, community disorganization, gang activity, lack of role models and substandard education. Such considerations of shaping influences are critical to a capital jury making an informed decision on a defendant’s moral culpability or death worthiness. From plea negotiations, thru jury selection, merits phase, and sentencing, demographics and maps can play a powerful part in the outcome.

It (Probably)is not Simple PTSD: Formative Trauma and Complex PTSD

Expert to be
Announced

Formative Trauma/Complex PTSD differs from the DSM diagnosis of PTSD in that it directly effects the neuropsychiatric development and ongoing functioning of the person who is subjected to it. Relational, regulatory and cognitive functioning as well as other abilities can all be negatively impacted such that an individual is unable to cope in ways that are expected of them by their community and society at large. Without adequate intervention these symptomatic states can and do persist throughout one’s lifetime.

Witherspoon/Witt/Morgan

Tammy
Brady
Kristen
Nelson

This session will cover the basic case law underpinning the Colorado Method of capital jury selection. We will also discuss strategies for litigating jury selection prior to trial, as well as how to infuse your pre-trial and trial practice with Colorado Method language.

PC: Ford/McPeters Claims

Wes
Van Winkle
Harry
Simon

In 2015, Habeas Corpus Resource Center filed a petition in the California Supreme Court on behalf of Ronald McPeters raising his permanent incompetence to be executed under Ford v. Wainwright, 477 U.S. 399 (1986). The Attorney General filed an informal response urging the Supreme Court to: (1) issue an order to show cause to address this claim on the merits; (2) resolve the claim in Mr. McPeters favor based on uncontested evidence; and (3) vacate his sentence of death. Since that time, the Attorney General has urged the California Supreme Court to resolve permanent incompetence claims on behalf of three other petitioners who are not nearing execution: Jeffrey Jones, Ronald Bell and Justin Merriman. This session discusses the litigation in California courts of claims that condemned inmates suffer mental illnesses that render them permanently incapable of having a rational understanding of the fact of their execution or the reasons for it. This session also discusses related developments in federal habeas litigation.

PC: Lethal Injection Litigation Including as Applied Challenges & Late Stage Resources

Jennifer
Molayem
Expert to be
Announced

This presentation will assist late-stage litigators in understanding the basics of California’s method of execution and aid late-stage teams in assessing the viability of as-applied lethal injection litigation. The panelists will cover issues surrounding barbiturates and their physiological effects on the body, compounded drugs and risks of harm, and establishing and maintaining intravenous access.

4:30pm - 5:45pm

Plenary: Settlement

Marcia
Morrissey
James Thomson

Setting the stage for counsel to resolve the capital case short of trial. This session will cover various topics, including exploring with the client the possibility and desirability of reaching an agreed-upon disposition, explaining the rights that would be waived, the possible collateral consequences, and the legal, factual, and contextual considerations that bear upon the decision. Specifically, this session will address: the types of pleas that may be negotiated; the binding nature of plea agreements; the practices, policies and concerns of the jurisdiction, judge, prosecuting authority, and the victim's family; and the scope of potential client concessions and the benefits the client might obtain from a negotiated settlement.