FLAWED RESPONSE TO IAC IN DEATH PENALTY WORK:

JUDICIAL INTERVENTION

Judge John Conery of the 16th Judicial District explained new training for Judges in the wake of Ineffective Counsel cases overturned by the Federal Courts.  An effort is being made to have District Courts confirm effective case preparation through pre-trial status conferences, incamera.  A "Benchbook" drawn up for the District Court suggests verifying work by quizzing Counsel on experts, reviewing expert witness reports and taking steps to get the case ready: including removing counsel if things are not getting done.

Several recent Federal Rulings,  noteworthy for the fact that the entire State level process had said "this is OK",  have vacated Death Sentences over IAC.   Why the same courts that considered the IAC and found it compliant with standards can now have the insight to pre-emptively determine effectiveness is not too clear.   There is going to be a second round of CLE on the issue for Louisiana Judges this fall, complimenting an earlier set presented in Lafayette in the spring.  Apparently,  two training sessions will be enough to power up our District Judges and give them sufficient insight to spot the lackluster efforts they missed post trial in a pre-trial setting!

The suggestion that the defense may have to produce reports and discuss strategy and tactics with the Court has raised the hackles of more than a few in the Criminal Justice Bar,  who note the irony and legal hurdles to be hopped:

            - Why doesn't the Court supervise Brady violations: in the wake of Kyles and other cases, there has been no move to  collar the DA's and check their work;

            -  Counsel has confidential and privileged communications and information in the file.  "Judge" is not equal to "waiver" in Black's Law Dictionary: lawyers cannot reveal all in the interest of avoiding IAC;

            - Since the Trial Court consistently denies continuances and otherwise won't take Counsel's word for when he is "ready",  does the judiciary intend to make findings of its own.  This is unprecedented.  

            - Suppose a Judge says "you're ready" and that is challenged later:  IAJ  (Ineffective Assistance of Judge?)  Welcome to the witness stand, Your Honors, you have now become a witness in the PCR proceedings, because you are part of the "defense team", or had a direct impact on the Right To Counsel under the Federal and State Constitutions.

Already,  a DA in Baton Rouge has filed a Motion for the Court to hold a Status Conference on Defense Preparation in a Capital Case!  Standing? 

The concern of course is not that the Judge cannot inquire of readiness, but the intrusive format chosen, which apparently seeks to have Counsel "explain" the defense,  prepare reports for the court and publish them to the Court "under seal".   Striking is the contention that the Court might be able to remove or sanction Counsel if the Court considers an effort insufficient.  But the Capital Defense Bar is quite small,  and a few Judges have that expertise: do we really consider 10 hours' training sufficient for taking over the defense?

Pull up a chair.  This is one to watch.