Sunday, February 17th, 2019


7:45am - 8:45am

Morning Swap Meet: Open Discussion of Capital Work Challenges

Shelan
Joseph
Monnica
Thelen

This session is designed as an open, informal forum to discuss the challenges of our work, and possible strategies for managing difficult situations. Challenges may come from a variety of places over the course of a case or a career. Come share your thoughts on challenges you hope to overcome, and any similar concerns you wish to raise. Presenters will serve as facilitators of the session, but the floor is yours. All capital defense professionals welcome.

9:00am - 10:15am

Plenary: Understanding and Litigating the Young Brain

Michael
Burt

Roper v. Simmons established a categorical bar to executing anyone under age 18. This presentation will explore recent legal and scientific developments justifying an expansion of this categorical bar and new ways of presenting youth as mitigation.

10:30am - 11:45am

Adolescence: Investigating Development Through Mid-20s

Laura
Rogers
Speaker to be
Announced

Science tells us that the brain is not fully developed in critical areas relating to neurocognitive functioning until the mid-20s. Investigating our clients' developmental history, behavior into their 20s, and subsequent maturation can provide powerful, mitigating illustrations to back up the science. This session will focus on identifying the factors that rendered your client particularly immature within the meaning of Roper v. Simmons, gathering mitigating evidence of his youthful immaturity at the time of the offense, and integrating this with your other mitigation themes.

Cultural Competency II

Expert to be
Announced

Cultural Competence I discussed the importance of developing ethno-culturally competent legal teams, described what such a team might look like and how it might function, and began to outline steps that can be taken to move towards the development of such a team. In this session, individual case examples will be offered that demonstrate how a culturally competent approach to working with a client can make all the difference. In addition, participants will be encouraged to describe some of their own cases that raise ethno-cultural issues for discussion with the presenter and other participants in the session.

Deconstructing Prejudicial Psychiatric Language

Denise
Gragg
Sean
O'Brien

Labels dehumanize our clients by triggering negative associations and stereotypes, especially prosecution favorites such as antisocial, narcissist and psychopath. Even the defense team’s perception of the client can be adversely affected by psychiatric labels. This session will explore ideas and methods for preventing prejudicial labels from sidetracking the client’s mitigating story.

DNA: Probabilistic Genotyping Including Source Code

Expert to be Announced Expert to be
Announced

Testing laboratories are under growing pressure to generate probative DNA test results from increasingly marginal and complex samples that would be deemed uninterpretable using conventional approaches. Entrepreneurs are rushing to address that need with proprietary probabilistic genotyping software. However, there are significant issues with the development and transparency of this software, as well as the design of studies used to test its reliability as applied in casework. This session will focus on the underlying problem that probabilistic genotyping programs intend to address, the legal challenges that they have been facing, and strategies for future challenges. The session will be most beneficial to trial and post-conviction lawyers but investigators may also find the information presented useful to their practices.

Finding the Story in Your Case

Richard
Jasper

Narrative is the heart and soul of any capital case. It is the finding of that narrative that provides our best opportunity to prevail. This session will explore various storytelling techniques and discuss different methods of implementing them to allow the particular narrative of your case to emerge.

Intellectual Disabilities: Investigating Adaptive Deficits

Scarlet
Nerad
Expert to be
Announced

The presenters, an expert on adaptive functioning and a mitigation specialist, will discuss methods for conducting an investigation of a client’s adaptive functioning, including within the community or communities in which he lived. They will explain how culture, language and physical environment must be thoroughly explored and explained to the trier of fact-who may be unfamiliar with the conditions of the client’s home community-because they are integral to understanding the context in which an individual lives and is expected to function. They will also discuss working with experts and developing a persuasive presentation to fact-finders, who may be unfamiliar with the conditions of the client’s home community.

Litigating Race: Combatting the Most Persistent Legacy of America’s Original Sin.

Henderson
Hill
Alison Siegler

From the heights of Olympia Washington (Gregory) to the Texas low lands (Buck, Moore), the red clay of Georgia (Foster) and the piedmont of North Carolina (RJA) litigators continue to cultivate fertile ground on race-based claims. Why you should be leading the effort to bring next-generation litigation concerning race?

Prop 66 Update for Trial Lawyers

Bob
Boyce
Tim
Foley

Proposition 66 shifted the litigation of state habeas corpus petitions in capital cases from the California Supreme Court to the Superior Courts. With the new Judicial Council Rules of Court on the horizon, and the recent wholesale transfer of scores of pending cases, major changes to the way post-conviction proceedings are litigated in California capital cases is anticipated. This session will preview the coming battlefield, discuss the new rules, and survey the anticipated procedures for court appointments, litigation, hearings, and decision-making.

Testilying Cops

Barry
Scheck
Jennifer
Sellitti

This session will focus on developing effective strategies in individual cases to obtain and utilize acts of police misconduct pre-trial, at trial, and in post-conviction proceedings. Barry Scheck, Co-founder of the Innocence Project and Partner at Neufeld Scheck & Brustin, LLP, and Jennifer Sellitti, Director of Training for the NJ Office of the Public Defender, will discuss how lawyers can fully leverage what they learn about police officers in their cases at motions and trials. The talk explores emerging brain science around judicial decision-making, witness demeanor and its role in argument, developing stories of officer bias, advanced impeachment techniques, pre-trial discovery practice, and ways to pull it all together in powerful written and oral arguments. The discussion will cover the best legal arguments for getting access and the best strategic uses for getting acquittals and post-conviction relief will be reviewed. Attorneys will leave this program with a new set of tools they can use to destroy the credibility of police officers in front of even the most reluctant judge or jury.

Understanding Language Impairment (Encore)

Michele
LaVigne

* This session is a repeat from Saturday at 10:45am


"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: Prop 66 Rules

Joe
Schlesinger
Mike
Hersek

Many provisions of Proposition 66 revise aspects of the post-conviction process. In 2018 and continuing in 2019, an advisory group to the Judicial Council of California has worked to recommend adoption of many new Prop-66 based rules, affecting both appellate and habeas counsel. In this past year, the California Supreme Court also has transferred dozens of pending habeas corpus petitions to the superior courts. The presenters will provide an overview of these recent developments and discuss the future of capital post-conviction litigation under Prop 66.

PC: Investigating and Proving IAC Claims Post-Conviction

Fred
Renfroe
Ellise
Nicholson

In this session, we will review the basics of how to investigate, plead, and prove that your client did not receive the effective assistance of counsel at trial. We will review the most fruitful sources of documentary and witness information supporting these claims, interacting with trial counsel, and presentation of the claim in the petition and traverse.

1:15pm - 2:30pm

Constitutional Challenges Based on Racial Disparities

Lisa
Romo
Lila J.
Silverstein
Dr. Katherine Beckett

On October 11, 2018, the Washington Supreme Court invalidated the death penalty as it has been administered in that state. In State v. Gregory, 427 P.3d 621, the court determined that the death penalty violated Washington’s state constitution because it has been imposed in an arbitrary and racially discriminatory manner. This session will feature Dr. Katherine Beckett and attorney Lila Silverstein to talk about their incredible success in Gregory. Dr. Beckett, a sociology professor from the University of Washington, will discuss the study she conducted with Heather Evans to assess the influence of race on the administration of capital punishment in that state. Ms. Silverstein, from the Washington Appellate Project, will discuss their litigation strategy and offer suggestions as to how practitioners from other states might mount a similar challenge. Lisa Romo, an attorney from California’s Office of the State Public Defender, will briefly review the status of racial-disparity challenges in California and discuss the possibility of bringing a claim similar to that in Gregory here.

Culture, Race & Implications for Psychiatric Illness

Expert to be
Announced

To present our clients’ mental health impairments in an accurate and compelling way, we must appreciate the roles of race, ethnicity and culture play in symptom presentations. Failure to understand these issues often leads to misdiagnoses and difficulties in defense team-client relationships. The presenter will address these issues, the link between medical and psychiatric issues, and how medication issues (including psychiatric and over-the-counter medications) interact with race, ethnicity, conditions of confinement, and drug metabolism. This session is designed for trial and post-conviction attorneys and mitigation specialists.

Discovery

Jason
Cox

The presenter will discuss what Brady really means, recent developments in discovery law, and remedies and sanctions for prosecutorial discovery violations.

Dynamics of Complex Trauma: Implications for Interviewing & Presenting Trauma

Susan
Garvey
Kathy Wayland

Through case examples and videoclips, this session with provide an overview of the underlying set of dynamics (coercive control) that pervade our clients’ lives. We will make the link between complex trauma and its predicable outcomes: how our clients’ symptoms of hyperarousal, avoidance, fears about relationships, and existence in “survival mode” can lead to self-destructive and criminal behavior. We will focus on interviewing techniques to elucidate these dynamics and symptoms, and discuss how to present this information in a compelling manner. This session is designed for trial and post-conviction attorneys and mitigation specialists.

Gunshot Residue

Oscar
Bobrow
Expert to be
Announced

This session will discuss the science surrounding gunshot residue determinations and the details of what goes into a GRS analysis. It will also discuss the attributes and pitfalls of presenting GSR in your case, including whether it can be successfully used to show the distance and trajectory of firearm use. There will also be discussion and presentation of sample motions for the admission and exclusion of GSR evidence.

Investigating & Mitigating Institutional Issues

Marc
Donatelli
Expert to be
Announced

This session is about finding mitigation in institutional settings - prison, county jail and juvenile facilities. Using the free world picture of your client prior to confinement, we will discuss how to develop institutional failure and abuse . This session will address how to investigate a facility, how to identify and talk to witnesses to mitigate or disprove the state’s aggravation, and how to develop material that explains your client’s actions in custody and his state of mind at the time of the offense.

Opening Statements at Punishment Phase

David
Bruck

This session, for trial attorneys and mitigation investigators, will consider the penalty-phase opening statement as the defense team's best opportunity to tell the story for life. Long before trial, the opening statement can be used to help structure the entire defense penalty-phase investigation. This session will also cover the essential tasks of the penalty-phase opening, which are (a) to tell the client's story for life, (b) to respond to the prosecution's narrative and framing of the issues, (c) to prepare the jury for the prosecution's most powerful evidence for death, (d) to convey that each juror's sentencing decision is subjective, moral, and personal, and (e) to draw the jury's attention to the issues that will lead to life.

Record Collection

Sheree Cruz-Laucirica Gwen
Allen

This session highlights the importance of record collection in a social history investigation. It introduces the most common sources for the records we request in our cases as well as more creative sources of information. We will discuss releases & techniques for working with agencies to obtain records. Finally, we will examine records to identify mitigating information and additional avenues for record collection and investigation.

Storytelling for Non-Lawyers

Mirra
Schwartz
Russ
Stetler

Investigators and mitigation specialists may think of their jobs as simply gathering the raw material of a capital defense, but they have as much responsibility as the lawyers for shaping the material into a coherent and persuasive narrative. This session will describe that process and provide examples both from trial and post-conviction cases.

Understanding and Litigating (In)Competence Without Contaminating The Rest of Your Case

Charles Hendrickson John Philipsborn

Two lawyers with extensive experience in addressing (in)competence to stand trial will review the markers that lawyers should have in mind in assessing a client's competence; in working with assessing mental health experts; in planning litigation and litigating competence; in protecting the client and the information developed in a competence inquiry against collateral use in other parts of the case; and in understanding what information is developed when a client is committed to a state or federal facility for competence restoration.

PC: Pleading Prejudice

Elizabeth Dahlstrom Patricia
Young

This session provides the latest developments involving prejudice standards for common post-conviction claims and discusses how to plead and argue prejudice in state and federal post-conviction.

PC: Preservation Motions

Robin
Kallman
Fred
Renfroe

This session will discuss the critical role preservation litigation plays in securing meaningful state and federal habeas review, now more than ever in our Post Prop-66 world. In most capital cases, many years will pass between the entry of judgment and appointment of habeas counsel. Meanwhile, the materials that habeas counsel will need to obtain in order to investigate and litigate claims on habeas corpus - i.e., records and physical evidence in the hands of law enforcement and other entities - are likely to be destroyed or lost unless trial counsel or appeal-only counsel takes action to safeguard them. People v. Superior Court (Morales) (2017) 2 Cal.5th 523 makes clear that, even during the pendency of the appeal, the trial court has the power to order preservation of such materials. The California Supreme Court’s policies impose a duty on appeal-only counsel to seek such an order. This session will show you how to craft a preservation motion that will save the day and prevent the destruction of the information essential to your client’s ability to obtain meaningful habeas corpus review.

2:45pm - 4:00pm

Approaches to Interpretations and Quantification of Scientific Evidence

Andrea
Roth
Julia
Leighton

This session will prepare lawyers (even math-phobic lawyers!) to understand and potentially challenge the state's characterization of the "weight," or probative value, of pattern match evidence offered against their client. For some types of evidence, such as DNA, analysts present a quantified match statistic - a number, such as a "likelihood ratio" -- to express weight. Even non-DNA disciplines like shoeprint and toolmark comparison are currently trying to develop methods to quantify weight of evidence. As it stands, non-DNA fields typically use a non-quantitative, verbal assessment of weight, such as that the evidence "strongly supports," "moderately supports," or "weakly supports," a claim of attribution. As we discuss, there may be little scientific foundation for such statements, and any statements of weight must be interpreted with error rates in mind. We will cover the importance of error rates and how to use them, guidelines related to the interpretation of DNA mixtures, new SWGDAM guidelines as to presentation of "likelihood ratios" in DNA cases, new standards related to verbal assessments in non-DNA fields, and new issues on the horizon.

Cell Phones

John
Ellis
Expert to be
Announced
* This session repeats Monday at 10:45am

Ninety-two percent of adults have a cell phone-which are constantly keeping track of its location. There are three primary sources of location data: the phone, applications, and the phone company records. This presentation focuses on how this data is stored, retrieved and how to use it in representing your client. It also includes a live demonstration showing how to plot historical cell site location data using free tools.

Child Victims

Katy
O'Donnell

This presentation will cover the unique aspects of handling a case with a child murder victim. We will discuss discovery issues, pretrial litigation, jury selection, themes for opening statement and closing argument, victim impact evidence, and plea negotiations. Additionally, we will address counsel’s own feelings regarding representation and the special problems and challenges that may arise with regard to forming a meaningful relationship with your client.

Cross-Examining a Forensic Scientist

Jennifer
Friedman
Ed
Ungvarsky

Cross-examining a government forensic science expert is often one of the most challenging aspects of a criminal case. This session will focus on preparation and strategies for effectively cross-examining a forensic witness and for presenting the defense narrative through your cross-examination. Emphasis will be what’s new in the realm of forensic science. The session will be most beneficial to trial and post-conviction lawyers but investigators and mitigation specialists may also find the information presented useful to their practices.

Epistemic Oppression

Julie
Brain
Expert to be
Announced

This session will address the double-sided nature of evidence in capital cases. From the perspective of Epistemic Oppression, presenters will discuss how the defense is hindered in a way the prosecution is not, and has a higher burden in reaching jurors. They will discuss how the prosecution has one narrative, while the defense has to switch gears and tell two narratives. At the heart of the discussion will be the dangers of pathology narratives and obstacles to telling our clients’ stories. Presenters will discuss strategies for addressing these challenges.

Frontloading Mitigation

Jack
Earley
Monica
Foster

A capital trial is a unified trial and saving a client’s life requires incorporating mitigation into the culpability phase. As repeatedly demonstrated through studies by the Capital Jury Project, jurors frequently decide between life and death long before the punishment phase ever begins, making it imperative to communicate the mitigation themes throughout the case, including jury selection and the culpability phase. The presenters, two exceptional capital defense trial lawyers, will provide tips for frontloading mitigation.

Overview of Psychological Testing and Norms

David
Freedman

This session is an introduction to assessment, providing an overview of cognitive and functional assessment (aka testing). It will focus on what the defense teams needs to do before having a client evaluated; different types of testing and assessment and what information they provide; how tests are normed and interpreted; and what the defense team needs to do in order to understand and make educated decisions about assessment and testing protocols. The purpose of testing is to determine the ways in which your client's development and life course deviated from the typical development and course.

Perkins Operations

Scott
Sanders

The speaker will provide an in depth analysis of issues surrounding the growing use of Perkins operations. Efforts to have jail informants and undercover law enforcement question suspects before their 6th Amendment rights are implicated have created unique challenges to defendants in their attempts to attack the admissibility of statements, to obtain informant discovery, and to compel informant testimony-over some prosecutors’ objections-when operations have been recorded. The speakers will discuss motions and strategies, while also providing a discussion of the recent history in California of prosecutors’ attempts to hide evidence about Perkins informants.

Presenting Neuropsychological Evidence at Trial

Danalynn
Recer
Expert to be
Announced

A neuropsychologist and capital trial counsel will discuss their experiences in presenting neuropsychological deficits to fact-finders prior to and in sentencing trials, identify issues that must be taken into consideration and provide suggestions for turning what may seem to be dry scientific data into a compelling story for life.

Using Social Media, Including Investigation

Jenny
Merrigan
Maria
Sapene

Social media is a treasure trove of facts you never knew you needed to know and photos you will never unsee. The key is knowing how and where to look. This presentation includes strategies for investigating witnesses, jurors and mitigation evidence, as well as techniques for effectively cataloging the information.

PC: Federal Legal Developments

Mark
Drowdowski
Kelly
Culshaw

This session provides an overview of United States Supreme Court, Ninth Circuit, and California district court habeas corpus and death penalty opinions since last year's conference. The session aims to identify themes and trends and to provide concrete advice in light of new legal developments.

PC: State Legal Developments

Will
Whaley
Ryan
Davis

This workshop will address recent state law developments. It will focus primarily on the opinions in capital cases decided by the California Supreme Court in 2018. It will also cover particularly significant developments in non-capital cases and will touch on new legislation including, e.g., SB 1437. The session will be geared toward attorneys handling direct appeals in California. Its purpose is to update the California appellate practitioner on recent legal developments that may impact how we strategize and approach our briefing.

4:15pm - 5:45pm

Plenary: Emerging Atkins Issues

James
Ellis
Mark
Olive

This session will address the most recent law and science regarding identifying and litigating claims of Intellectual Disability under Atkins v. Virginia.