Defendant got tons of time, stacked, for agg sex assault, promotion, performance, and possession of child porn, etc.

AFTER his defense counsel dies, he files 11.07 writ claiming ineffective assistance for lack of investigation, and came up with an affidavit from a potential defense witness who said counsel never interviewed them. He also claims counsel failed to investigate claims that one of the child victims was never at his house after a date which preceded the date alleged for commission of the offense on that victim. There were other victims, and the defendant's shining face appears briefly on one of the computer videos of two of the child victims masturbating. His computer was brim full of really really child porn.

The court has mandated new findings by the trial court. Defense counsel is dead. He was a well respected criminal defense lawyer, but was an old time trial lawyer who kept most of his files in his head.

If it were just a matter of losing one or two counts on the indictment it wouldn't matter, 99 years off of 397 ain't that big a deal, but my thinking is ineffective means a total dump of the conviction.

What, if any, effect would defense counsel's untimely demise have on the habeas action?

I don't know how much time has lapsed between the conviction and the writ application, but this would seem to be an excellent chance to invoke the doctrine of laches. I had one of these about a decade ago (writ filed yrs after conviction and about a week after counsel died) and had access to the slim file of the defense. I primarily relied on laches but because the matter was white-carded I can't tell you whether that argument prevailed.

Take a look at Ex Parte Carrio, 992 S.W.2d 468, where the Court of Criminal Appeals recognized the doctrine of laches in an ineffective assistance of counsel claim raised 14 years after the death of his trial attorney. Also, check out the result at 9 S.W.3d 163.

That and subsequent cases on that line should give you a good idea of the type of findings you will want to be asking the trial court to make.

Unsuprisingly, it is not all that infrequently that such a claim is raised after the best person to refute the allegation is no longer living.

I agree with John. We generally raise laches in every ineffective assistance allegation involving deceased attorneys.

Did that lawyer ever execute an affidavit regarding an IAC claim while he was alive? We have submitted such in a case where counsel was deceased to show how he performed in a similar case. Can be very useful to show probable trial strategy.

Laches is definitely the way to go. In addition, if you have lost evidence and witnesses, you should notify the court of those problems, too. Defendant should be held responsible for putting the State in an indefensible position. Sort of the reverse of a Speedy Trial motion. Defendant failed to pursue a speedy writ.

Another good reason to support a time period for requiring defendants to file a writ, particularly as to the inevitable claims of ineffective assistance. The feds make it one year. What would you make it for a state writ?

John Bradley
District Attorney
Williamson County, Texas

I am not sure that any time period need be imposed in state court so long as we can invoke section 4 and laches and the CCA employs them both. There are simply some issues that will come up years afterwards that the inmate could not be faulted for any delay in raising. IAC and newly discovered evidence are but two claims-- or did you have some savings language in mind too?

That said, I'm fully in favor of methods deterring and eliminating frivolous claims. Unfortunately, inmates always consider their claims "extraordinary" when they are mostly merely ordinary. And the writ is clearly meant to lie only for the former. Perhaps, only counsel should be permitted to file them and the discipliary rules given teeth, which are then used.

[This message was edited by John Stride on 08-04-06 at .]

It appears the CCA will get to review a case where the convicted's trial attorney died before the ink on the appellate court's mandate (affirming conviction) had dried.

I'm refering to Ex parte Goodspeed, WR-47282-03. On August 17, 2005, the Court of Appeals issued its mandate affirming Goodspeed's conviction. Brown's trial attorney had died on August 11. Goodspeed's 11.07 application was transmitted by the trial court clerk to the CCA on January 26th of this year. The Court of Criminal Appeals has now, in an order issued last week, remanded that 11.07 application for further hearings on Goodspeed's claim of ineffective assistance of counsel.

It will be interesting to see what evidence develops in the trial court and how the CCA ultimately resolves Goodspeed's claims, given that Goodspeed waited only a few weeks after the initial appellate process was complete--yet the best person to respond to Goodspeed's claims is now dead.

How is IAC a claim worthy of late review? Defendant was at the trial. Why does he need 20 years to realize that his lawyer failed to do this or that?

John Bradley
District Attorney
Williamson County, Texas

Thanks to all of you for your responses. The mandate on the guy's Appeal to the Court of Appeals was issued 5/5/04. One of his grounds was ineffective assistance. The trial lawyer died in October of '04. His witness's affidavit is dated 7/24/05. The 11.07 was filed in Marshall on 8/12/05, and lodged in Austin on 9/21/05. The cases on laches that I've looked at were much longer time periods. Has anyone heard of a 15 month laches defense? I'm willing to bet he began investigating the feasibility of the 11.07 action after hearing of his lawyer's death.

Al,
Don't forget the burden is on the applicant, not you, to establish both prongs of Strickland. That is a very high threshold for the applicant to surmount. Also, given that the CCA has clearly and repeatedly told us that trial counsel's practice, thoughts, and reasons are all part of the equation too, the applicant has a tough burden. There are other witnesses you may want to call on. How about counsel's colleagues and investigator? Remember the trial judge can use personal recollection as well.

Thanks, John, but the only colleague is the co-counsel. Don't know how much the judge's independent recollection can help with pretrial investigation issues. The witness affidavit does not reflect the certainty that I think should be required and I think we can get past that. The allegations about the victim not being in the house after a certain date may well be handled with all the old "on or about" arguments. The more I see and hear, the better I feel. I just am tense about the all or nothing nature of an ineffectiveness claim, and want to make sure I cover everything I can.

Al:

You may also want to see who has the deceased attorney's files. They may give you some idea what investigations were undertaken.

If there was an appeal, the deceased attorney may have made a copy of his files for the appellate attorney.

If the trial attorney was court-appointed, you may want to look at his billing requests. They may also provide some accounting of his activity in the case.

Thanks, Steve. I see you are operating under the assumption that we had the typical, tight, well organized, everything documented, law firm defending this case. NNNNNo. A sole practitioner who, though well respected, and a mighy foe in court, was lucky if the entire file was in one box, and "documented" most of his pretrial efforts in his brain, which has, of course, crashed. The file was in the attic of his building, which, since his demise, has been leased, then sold. The widow promised to pull it out, but no again. The co-counsel may actually pull it and review it before the hearing, one can hope. Her lawyer is the one who bought the building so there is some hope. Typical billing practices on this case do not involve a time sheet nearly as detailed as a grocery list. Gee, this will be fun.
Then again, as everyone has reiterated, the burden is on the defendant.