Concerning Capital Defense Practice During the Pandemic

NACDL encourages counsel not to abdicate their responsibility to provide effective representation to their clients and to continue to make a full record of work that cannot be achieved during the pandemic. NACDL supports its members and others who adhere to fundamental capital practice standards during this pandemic and refuse to undertake substandard in-person work.

The National Association of Criminal Defense Lawyers (NACDL) has previously expressed its concerns about the potential impact on fundamental constitutional rights when courthouses reopen during the COVID-19 pandemic. (See NACDL’s June 4, 2020, report -- Criminal Court Reopening and Public Health in the COVID-19 Era.) These concerns are vastly enhanced when a criminal proceeding may result in a death sentence.

Among NACDL’s thousands of members are hundreds of capital defense practitioners in both state and federal venues. NACDL supports its members, the overall community, and capital clients in affirming that capital defense fieldwork, including in-person interviews, legal visits in jails and prisons, and in-person records collection, should not be undertaken while the current health and safety risks the coronavirus poses to society remain.

Clients, other prisoners, jail staff, court staff, witnesses, the community generally, capital defense practitioners, as well as all of their families and loved ones, risk their own health and lives. Accordingly, capital defense practitioners have a conflicted position vis-à-vis their client’s constitutional rights, and their clients' lives, if they undertake in-person field work.

Because developing positive rapport and working relationships with witnesses in capital cases is fundamental and witness engagement can be difficult, taking shortcuts such as conducting interviews by phone or video, or showing up on a witness's doorstep wearing a mask, will increase the chances of a witness declining an interview and disengaging from the process. An effective mitigation investigation requires the defense to ask witnesses about traumatic and humiliating experiences, including sexual and physical violence, mental illness, extreme poverty and the like. Witness disengagement is often unresolvable, and potentially deadly for a client.

The Guidelines for the Appointment and Performance of Defense Counsel in Death Penalty Cases, the minimum national capital defense professional practice standards, approved by the American Bar Association in 2003, and the Supplementary Guidelines for the Mitigation Function of Defense Teams in Death Penalty Cases, published in 2008, reinforce the critical importance of in-person investigation in capital cases. Unfortunately, these standards, relied on in multiple, seminal United States Supreme Court cases, as well as other state and federal cases, cannot be met in current pandemic conditions.

NACDL encourages counsel not to abdicate their responsibility to provide effective representation to their clients and to continue to make a full record of work that cannot be achieved during the pandemic. NACDL supports its members and others who adhere to fundamental capital practice standards during this pandemic and refuse to undertake substandard in-person work. There is significant mitigation work that can be ethically, professionally, and appropriately undertaken during this pandemic that does not require in person contact. NACDL recognizes that though the decision to seek the death penalty is discretionary, the duty to protect the constitutional rights of capital clients is not.

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