Beyond the Probation Report:

Transcription

1 Beyond the Probation Report: Beyond the Probation Report: Retaining Experts for Franklin Hearings

2 Overemphasis on the Probation Report 8A imposes heightened need for reliability [in capital sentencing]. 1 Hearsay No consideration of Mitigation No Mental Health Expertise Previous negative exposure to law enforcement 1 CA v. Ramos, 436 U.S. 992, 1021, (1983)

3 Overemphasis on the Probation Report

4 Reframing the Narrative Lawyer as advocate Social worker/social historian tells the story Psychologist frames story within clinical context

5 Our advocacy goals Normalize NORMAL teenage behavior Emphasize hope for redemption Explain Neglect & Trauma as mitigation

6 Who are the Experts? Social Historian/Mitigation Expert Defense Gang Expert Mental Health Expert Prison Adjustment Expert

7 Mental Health Expert Expectations Referral Question The BPH must give great weight to the diminished culpability of juveniles as compared to adults, the hallmark features of youth, and any subsequent growth and increased maturity of the [offender]. (See Cal. Pen. Code 4801(c)). Social History Client Interview Life History Records

8 Referral Questions Age and it s attendant characteristics. What was the juvenile s age and what are some particular things that make him/her especially immature, impetuous, unable to appreciate risks/consequences. 1.How did peer pressure affect his actions? Was he less culpable than the other participants? 2.Has he rehabilitated? Is he capable of change and growth?

9 Social History is Crucial Psych has limited time for field work Wont get enough info from one CT interview Documents not clear to courts Wiggins

10 Evidentiary Problems with Social History No tests Based on myriad hearsay Disorganized and truncated Lends itself to objections, lacks PK, speculative, relevance Gives advocate freedom to shape narrative

11 Overcoming Evidentiary Objections California Evidence Code 801 Expert opinion can be based on personal knowledge or information made known to [ the expert] at or before the hearing, whether or not admissible, that is of a type that is reasonably relied upon by an expert in forming an opinion upon the subject to which the testimony relates, unless an expert is precluded by law from using such matter as a basis for his opinion.

12 Overcoming Evidentiary Objections, Cont d. California Penal Code 1204 This section shall not be construed to prohibit the filing of a written report by a D or D s counsel on behalf of a D if such a report presents a study of his background and personality and suggests and suggests a rehabilitation program. If such a report is submitted, the prosecution or probation officer shall be permitted to reply or to evaluate the program.

13 Psychological Examination of Client Clinical Tests MMPI TOMM Interview of Client Corroboration Prior diagnoses Life history documents Social History

14 ASPD- For Attorneys At least eighteen years old Onset of conduct disorder prior to age fifteen Antisocial behavior not explained by schizophrenia or bipolar disorder The pervasive pattern requires at least three of the following: Illegal acts Deceitfulness Impulsivity Irritability or aggressiveness Recklessness Consistent irresponsibility Lack of remorse

15 Addressing Malingering Definition: the intentional production of false or grossly exaggerated physical or psychological problems Assessment Testing Anticipating Defense

16 The Report Redacted Psych report sample Summary Sources of Information Used in Report Identifying Information Mental Status History Physical History Behavioral Observations Collateral Sources Diagnostic Formulation Recommendations

17 In Court Testimony Qualification Foundation Opinion Basis for Opinion

18 Franklin Protocol Gather and summarize the following: The record on appeal: Reporter s Transcript Clerk s Transcript All Appellate/Habeas/Petition for Review filings RT Notes (If not already done) CT Notes (Summarize preliminary hearing only) C-file (ERMS and SOMS) Summarize 115s (major disciplinary violations) Summarize custody points Summarize any vocational or rehabilitative programs Probation Report Note and summarize. Should be in CT or C-file Educational records: DCFS records (if available) Request from Department of Child & Family Services Medical records Write to and/or call the hospital(s) Looking for head trauma, birth or neonatal concerns, emergency room visits Draft and file the Franklin petition File in court in which client was sentenced Prepare the social history Client (start with this, and revisit periodically) Family members (immediate and extended) Close relationships (before and during incarceration) Friends, classmates, homeboys Teachers, social workers, caseworkers, coaches People in the neighborhood Client life history Written, in six-year segments May take some time, and several visits Retain experts Psychiatric/Psychological Expert Prepare motion for court to appoint expert Use template, but tailor carefully to your expert Draft and finalize referral question Meet with expert at least once Moot expert direct testimony before hearing Social History/Mitigation Expert Will usually be Efty Sharony Coordinate testimony as you approach hearing Prison adjustment Expert Prepare motion for court to appoint expert Use template, but tailor carefully to your expert Not in every Franklin case Provide expert with record on appeal, C-file, social history Draft and finalize referral question Meet with expert at least once Moot expert direct testimony before hearing Memorandum Respond to any filings by the People Set hearing date Make sure client gets down 1 week before hearing, but not more. Prepare motion for transfer to county jail Prepare any additional motions (additional costs, authorization to visit ct in jail, etc.) Hold the hearing Opening Social History Expert Psych Expert [Prison Adjustment Expert] Any People s Witnesses Statement by client Closing argument Post-hearing See client in lockup; debrief Make sure client is removed to state prison ASAP Interviews

19 Questions? Juvenile Innocence and Fair Sentencing Clinic (213)