ENHANCING THE DEFENSE  
  BY ENHANCING THE TEAM
                                                 
  Presented by Michael Curtis 
  Curtis & Correll
  1125 SE Madison, Suite 100A
  Portland, Oregon 97214-3600
  Phone: 503-230-9285
  Fax: 503-282-4106
  E Mail: mike-law@worldnet.att.net

 

We capital defenders can do our jobs better.  This is my prescription for doing so:

       ·           We should alter our conception of what the defense team is.

       ·            We should expand our conception of which persons are members of the defense team.

       ·           We should let members of the defense team use their skills, knowledge and instincts more freely.

1.   INTRODUCTION

Why would we do these things?  Ultimately, because they will make us better litigators.  But why will they work?  There are a number of reasons:

      ·           First, RELATIONSHIPS ARE PRIMARY.

Human beings are fundamentally social creatures.  Isolating ourselves, building barriers between ourselves and others, makes us unhappy and unproductive.  Working in effective social groups makes us happier and more productive.

     ·             Second, OUR JOB IS IMPOSSIBLE.

Our job – defending society’s most despised members, persons charged with our society’s most horrible crimes, crimes which can subject them to the ultimate and most unconscionable of punishments – our job is just to big for any one us.  There is too much to do, in too many different areas, requiring too many types of expertise.  Clearly, the job cannot be done.  We need help.

     ·            Third, OUR INDIVIDUAL VIEWPOINTS ARE NECESSARILY LIMITED.

Each of us is limited to our own experiences, our own education, our own cultural and genetic heritages.  However, we are called upon to translate an infinite spectrum of factors (the crime, our client, mitigation) to audiences about whom we have only limited understanding (prosecutors, police, surviving family members, jurors, appellate judges, post-conviction and habeas corpus judges).  The task of understanding what we must explain and the task of understanding how to explain it to different audiences, requires more insight than we have.  The only way we can even approach understanding everything we need to understand is to incorporate the views and understanding of others, based on their own unique experiences, education and cultural and genetic heritages into our own work

2.     ALTERING OUR CONCEPTION OF THE DEFENSE TEAM

From my introductory remarks it should be clear that I do not see a comprehensive defense team as optional, nor do I see it as some kind of adjunct supporting the attorney.  My contention is this:  The fundamental defender in the capital case is not the attorney, it is the defense team.  There is a which-came-first-the-chicken-or-the-egg argument against this contention.  The nature of the process defines the attorney as the first defender on the scene of the new case.  This, however, is a situation where priority in time does not create priority in significance.  Although the defense team cannot be built until the attorney begins building it, having an effective defense team is more important than merely having an effective attorney.

Accordingly, among the first and most important tasks early in the capital case is creation of the defense team.  I recommend against letting the team just happen.  While a certain amount of happenstance is inevitable in the development of the team, the attorney should be thinking about the personnel needs of the client and the case from the very beginning.  The attorney should discuss this with the client early on.  The attorney should acknowledge his or her own limitations and need for contributions from others.  Later in the case, before new members are brought into the team, the attorney should consult the client and other current team members.  No matter how skilled and dedicated a person is, he or she will not function optimally when placed in an unwelcoming environment.

Above all, the attorney should get over the naïve assumption that he or she can go it alone.  Rather, the attorney should be thinking about how to nurture and develop the team.  The attorney should be concerned with maximizing the effectiveness of each team member as an individual so as to maximize the effectiveness of the team.  The attorney should foster in himself or herself a keen appreciation of the unique contribution which can be made by each individual.

The attorney should learn to trust the team members.  (If a person is not worthy of trust, there is a fundamental problem which must be dealt with.)  Trust means letting go of control, allowing other team members to think independently and to act as full members of the team.

3.     EXPANDING OUR CONCEPTION OF WHICH PERSONS ARE MEMBERS OF THE DEFENSE TEAM

      Who is on the team?

   First and foremost, the person most important to the success of the defense is the client.  We forget this at our peril.  In truth, we forget it at our client’s peril.  Consider how many defenses have been undermined because the client was not on board.  Consider how many persons around this country are on death row not because the prosecutor was unwilling to negotiate, but because the client did not trust his defense team.  Consider how many trial strategies have been undermined because the client acted or testified at cross-purposes with his or her own defense.

We cannot bring the client on board late in the game.  We have to integrate the client into our case development from the very beginning.  Many years ago Carl Rogers advocated the concept of patient-centered psychotherapy.  (Those of you who trained with the late Cat Bennett will recognize her use of this concept.)  What I am advocating is client-centered lawyering.

The defense should not be something which happens to the client.  Rather, it should be something developed in conjunction with the client.  This is time consuming.  Sometimes it is frustrating.  It can take a lot of listening, a lot of thinking.  But it is worth the effort.  When the tough decisions are faced, the client’s decisions (where the client makes the decisions) and input (where the lawyer is responsible for the decisions) will be more reliable, more enlightened and more effective.

There are, of course, other persons whose participation is important.  First among these I would put the mitigator.  Effective mitigation is crucial in capital cases.  When mitigation really works, it informs all aspects of the case.  It can help build trial defenses.  It can help tell us issues we want to explore with potential jurors.  It can help us appreciate our client’s unique experience in this world.  In my experience, mitigation is not so much a thing as the result of a mitigator’s long and tiring immersion in the life of client, in the lives of the client’s family and friends, and often in the lives of the decedent and the decedent’s survivors.

Also of great importance are the case investigators.  (I use the plural intentionally.)  My experience has been that most capital cases require multiple investigators.  Once, when called upon to justify the use of multiple investigators, I wrote:

I propose to establish a team to work on any case.  The team would consist at least of two to three investigators, a mitigation analyst and myself. [1] 

I use multiple investigators for a number of reasons.  Different investigators have different skills and specialties.  One of my investigators is a former NSA analyst who later spent more than a decade with Naval Investigative Services and Naval Intelligence.  He is especially good in interviewing difficult witnesses.  His capacity to assess case theory and witness strengths and weaknesses is impressive.  Another of my investigators is a former director of community corrections from a Willamette Valley county and a former president of the Oregon Association of Legal Investigators.  He is especially knowledgeable about government use and treatment of informers.  This is an area which has become progressively more important over the last several years.  Another of my investigators, although lacking an impressive resume, has proven herself especially capable at developing background information about clients and witnesses.  Conflicting case schedules can take an individual investigator away for substantial periods.  Typically legal investigators who do substantial criminal casework are involved in a number of cases at the same time.  Sometimes the demands of one case will make an investigator unavailable for work on other cases.  It is unwise to put all one’s investigative eggs in one basket.  Different individuals bring different perspectives to a case.  When I write of developing a case team I am very serious about that.  Typically we spend substantial time discussing and analyzing a case together.  By obtaining the views of different persons with different perspectives we often identify themes, issues and approaches which would have been missed by a lone litigator.

The fact is that membership on the defense team should be defined by benefit to the client and the case -- paralegals, interpreters, psychologists, family and friends of the client, just plain folks – all can have a place in a given defense team.  The broader one casts the net, the more one faces issues of confidentiality and privilege.  They should be dealt with head on. [2] Sensitive information should be treated as such, and only distributed to those appropriate to receive it.

4.   LET MEMBERS OF THE DEFENSE TEAM USE THEIR SKILLS, KNOWLEDGE AND INSTINCTS MORE FREELY

             How do we use the team?

Begin meeting early in the case.  Meet often.

Sometimes the attorney should control the meeting agenda.  Sometimes it should be someone else.  Do not try to do everything at once.  Remember, there is too much to do.  Choose something workable.  Later meetings can deal with additional topics.

Let everyone have his or her say.  Often the most important observations about a topic come from the least expected sources.  Assume that everyone has something valuable to contribute.

Attorneys should be required to listen.  (The mitigator with whom I work is especially good at reminding me of this.)

To the greatest extent possible, make decision making a group process.  Sometimes the attorney must make the decision.  It should be made with the benefit of as much input as possible, especially the client’s.

Talk about divisions of labor.  Try to make informed group decisions about what team member is performing what job.  Keep track of the decisions.  Know who on the team is doing what.  Use the team, or individual team members, to make the attorney’s trial performance more effective:

  • Consider using the entire defense team in settlement conferences with the prosecutor.  If your best shot a saving your client’s life lies with the prosecutor, see the settlement conference as your trial.  Let everyone contribute.

  • Share the responsibility for reviewing that late arriving discovery.  (You know the discovery I mean, the 1,800 pages of reports which arrive three weeks before trial.)  Each team member can take primary responsibility for reviewing a portion of the total.

  • Share the responsibility for reviewing other massive documents you receive.

  • Share the responsibility for witness preparation.

  • Share the responsibility for outlining the direct and cross-examination of witnesses.  (A brief group session on the structure of witness examinations can go along way.)

  • Make the writing of opening and closing statements a group effort.  Let the client participate.

  • Share the problems of trial logistics.  Let team members help.

          

5.       CONCLUDING THOUGHTS by  --  Clarence Darrow

When I entered the practice of my profession years ago I determined that there never should be a case, however unpopular, or whatever the feeling, where I would refuse to do my duty to defend that case; and I can honestly say to this jury that I have kept the faith; that I have never turned my back upon any defendant no matter what the charge.  When the cry is the loudest the defendant needs the lawyer most; when every other man has turned against him the law provides that he should have a lawyer -- one who cannot only be his lawyer, but his friend.  And I have done that.   

 

1.    Clearly, my conception of what constitutes a team has expanded since I originally wrote this.

 2.   I have used the following language:

CONFIDENTIALITY AGREEMENT

     The person who has signed below acknowledges accepting employment as a [fill in with the description of your choice] relative to the case of State of Oregon v. Honest Ididnt Doit, an aggravated murder case pending before the Multnomah County Circuit Court.  In doing so the signer acknowledges that all information obtained in this employment is subject to the attorney-client privilege of the attorney-employer, Michael Curtis.  Such information may not be disclosed to any other person without the express written consent of that attorney and of his client, Honest Ididnt Doit.