La. Admin. Code tit. 22 § XV-2131

Current through Register Vol. 50, No. 9, September 20, 2024

Section XV-2131 - Pre-Trial Litigation

A. Obligations Regarding court Hearings

1. Counsel should prepare for and attend all court proceedings involving the client and/or the clients case. Counsel should be present, alert and focused on the clients best interests during all stages of the court proceedings.

2. As soon as possible after entry of counsel into the case, counsel should provide general advice to the client on how court proceedings will be conducted, how the client should conduct himself in court settings, how the client should communicate with counsel and others in the court setting and how the client should react to events in court. Counsel should advise the client on appropriate demeanor and presentation in court and take reasonable steps to assist the client in maintaining an appropriate demeanor and presentation. Counsel should plan, with the client, the most convenient system for conferring throughout any court proceeding.

3. Prior to any court hearing, counsel should explain to the client, in an age and developmentally appropriate manner, what is expected to happen before, during and after each hearing. Where the client may be directly addressed by the court or asked to speak on the record, counsel should warn the client in advance and both advise the client on how to proceed and prepare the client for any potential colloquy or testimony. Counsel should advise the client that he has the right to confer with counsel before answering any question, even if it means interrupting the proceedings.

4. Counsel should take all necessary steps to overcome any barriers to communication or understanding by the client during court proceedings, including the use of interpreters, slowing the rate of proceedings, taking adequate breaks, using age and developmentally appropriate language and explaining proceedings to the client during the hearing.

5. Counsel should document in the clients file a summary of all pertinent information arising from each court hearing and take particular care to memorialize communications and events that will not appear in the court record or transcript.

6. Counsel should ensure that the court minutes and any transcript accurately reflect the orders, statements and events occurring in court and that all exhibits have been marked, identified and placed into the record.

B. Obligations of Counsel Following Arrest

1. Counsel or a representative of counsel have an obligation to meet with incarcerated clients for an initial interview within 24 hours of counsels initial entry into the case, barring exceptional circumstances, and shall take other prompt action necessary to provide high-quality legal representation including:

a. invoking the protections of appropriate constitutional provisions, federal and state laws, statutory provisions, and court rules on behalf of a client, and revoking any waivers of these protections purportedly given by the client, as soon as practicable by correspondence and a notice of appearance or other pleading filed with the State and court. More specifically, counsel should communicate in an appropriate manner with both the client and the government regarding the protection of the clients rights against self-incrimination, to the effective assistance of counsel, and to preservation of the attorney-client privilege and similar safeguards. Counsel at all stages of the case should re-advise the client and the government regarding these matters as appropriate and assert the clients right to counsel at any post-arrest procedure such as a line-up, medical evaluation, psychological evaluation, physical testing or the taking of a forensic sample;

b. counsel shall represent the client at the continued custody hearing in order to contest transfer to adult court in accordance with performance standard 2125;

c. where possible, ensuring that counsel shall represent the client at a first appearance hearing conducted under La. C. Cr. P. art. 230.1 in order to contest transfer to adult court, contest probable cause for a client arrested without an arrest warrant, to seek bail on favorable terms (after taking into consideration the adverse impact, if any, such efforts may have upon exercising the client's right to a full bond hearing at a later date), and will invoke constitutional and statutory protections on behalf of the client, and otherwise advocate for the interests of the client.

2. Prior to indictment, counsel should take steps to secure the pretrial release of the client where such steps will not jeopardize the clients ability to defend against any later indictment. Where the client is unable to obtain pretrial release, counsel should take all reasonable steps to identify and ensure that the clients medical, mental health, education and security needs are being met and that the jail is in full compliance with PREA.

a. Counsel should consider requesting the client be held in a facility intended for juveniles rather than an adult jail.

b. Counsel shall advocate for the client to be provided a free and appropriate educational plan as required by the PREA, including special education as appropriate. Maintenance of the clients education may result in the development of positive mitigation evidence, and may be beneficial to the clients mental health.

c. Counsel shall consult with the client about requesting sight and sound isolation from adults, taking reasonable steps to explain the potential positive and negative consequences of such isolation.

3. While counsel should only seek to submit evidence for the client to the grand jury in exceptional cases, counsel should consider in each particular case whether such an application is appropriate in the circumstances.

4. Where counsel is assigned to the case of a defendant arrested outside of Louisiana, counsel should immediately contact any attorney representing the client in the jurisdiction of arrest to share information as appropriate and coordinate the representation of the client. Where the client is not represented in the jurisdiction of arrest, counsel should take all reasonable steps to arrange effective representation for him. Ordinarily, counsel should travel to the jurisdiction of arrest to consult with and provide legal advice to the client with respect to the Louisiana case and the ramifications for the case of waiving or contesting extradition. Counsel should conduct the initial interviews with the client, the assertion and protection of the clients rights and the investigation of the case, including the circumstances of the arrest, in accordance with these standards, regardless of whether the client is being held in the jurisdiction of arrest or has been extradited to Louisiana. Counsel should not wait for the client to be extradited before commencing active representation of the client.

C. Counsels Duties at the Preliminary Hearing

1. In the absence of exceptional circumstances, counsel should move for a preliminary hearing in all cases in a timely fashion, having regard to prosecution practices in the particular jurisdiction and the likely timing of any indictment. Counsel shall move for a preliminary hearing even when a continued custody hearing has been held and even where counsel represented the client at a continued custody hearing. If counsel is denied a preliminary hearing, counsel shall move for an adversarial bond hearing where counsel shall ensure his ability to examine witnesses.

2. In the event the client is subject to the jurisdiction of the juvenile court, in the absence of exceptional circumstances, counsel shall enforce the clients right to a continued custody hearing. Counsel should consider the strategic benefit of negotiating or requesting a continuance of the continued custody hearing, having regard for prosecution practices in the particular jurisdiction, the opportunity to conduct pre-hearing investigation, the opportunity to negotiate retaining juvenile jurisdiction over the case and the likely timing of any indictment. A continued custody hearing shall not substitute for a preliminary hearing.

3. While the primary function of the preliminary hearing is to ensure that probable cause exists to hold the client in custody or under bond obligation, the hearing may provide collateral advantages for the client by:

a. creating a transcript of cross-examination of states witnesses for use as an impeachment tool;

b. preserving testimony favorable to the client of a witness who may not appear at trial;

c. providing discovery of the states case;

d. allowing for more effective and earlier preparation of a defense; and

e. persuading the prosecution to refuse the charges or accept lesser charges for prosecution.

4. Counsel should conduct as thorough an investigation of the case as is possible in the time allowed before the preliminary hearing to best inform strategic decisions regarding the subpoenaing of witnesses and the scope and nature of cross-examination. Counsel should fully exercise the rights to subpoena and cross-examine witnesses to seek a favorable outcome at the preliminary hearing and maximize the collateral advantages to the client of the proceedings.

5. In preparing for the preliminary hearing, the attorney should be familiar with:

a. the elements of each of the offenses alleged;

b. the requirements for establishing probable cause;

c. factual information which is available concerning the existence of or lack of probable cause;

d. the tactics of full or partial cross-examination, including the potential impact on the admissibility of any witness testimony if they are later unavailable for trial and how to respond to any objection on discovery grounds by showing how the question is relevant to probable cause;

e. additional factual information and impeachment evidence that could be discovered by counsel during the hearing; and

f. the subpoena process for obtaining compulsory attendance of witnesses at preliminary hearing and the necessary steps to be taken in order to obtain a proper recordation of the proceedings.

6. Counsel should not present defense evidence, especially the clients testimony, except in unusual circumstances where there is a sound tactical reason that overcomes the inadvisability of disclosing the defense case at this stage.

D. Counsels Duties at Arraignment

1. Where possible, qualified counsel should be assigned prior to arraignment and should represent the client at arraignment.

2. Counsel should preserve the client's rights by entering a plea of not guilty in all but the most extraordinary circumstances where a sound tactical reason exists for not doing so.

3. If not already done, counsel should assert the clients Fifth and Sixth Amendment rights to silence and to counsel and should review with the client the need to remain silent.

4. If not already done, counsel should take all reasonable steps to identify and ensure that the clients medical, mental health educational and security needs are being met.

5. Counsel should move for discovery at or immediately following arraignment and shall reserve the right to file all other pretrial motions in accordance with the rules of criminal procedure. See performance standard 2131.F, formal and informal discovery.

E. Counsels Duty in Pretrial Release Proceedings

1. Counsel should be prepared to present to the appropriate judicial officer a statement of the factual circumstances and the legal criteria supporting release pursuant to C.Cr.P. art. 331, and, where appropriate, to make a proposal concerning conditions of release.

2. Counsel should carefully consider the strategic benefits or risks of making an application for bail, including the timing of any application and any collateral benefits or risks that may be associated with a bail application.

3. Where the client is not able to obtain release under the conditions set by the court, counsel should consider pursuing modification of the conditions of release under the procedures available.

4. If the court sets conditions of release which require the posting of a monetary bond or the posting of real property as collateral for release, counsel should make sure the client understands the available options and the procedures that must be followed in posting such assets. Where appropriate, counsel should advise the client and others acting in his or her behalf how to properly post such assets.

5. Absent extraordinary circumstances, counsel shall advocate for the client to be held in the juvenile detention center. Whether the client is in juvenile or adult custody, counsel shall advocate for PREA and, where appropriate, IDEA compliant conditions of confinement. See performance standard 2131.B, obligation of counsel following arrest.

F. Formal and Informal Discovery

1. Counsel should pursue discovery, including filing a motion for discovery, a bill of particulars and conducting appropriate interviews. Counsel has a duty to pursue, as soon as practicable, discovery procedures provided by statute, by the rules of the jurisdiction, and to pursue such informal discovery methods as may be available to supplement the factual investigation of the case.

2. In considering discovery requests, counsel should take into account that such requests may trigger reciprocal discovery obligations. Counsel shall be familiar with the rules regarding reciprocal discovery and be aware of any potential obligations and time limits regarding reciprocal discovery.

3. Counsel should consider seeking discovery, at a minimum, of the following:

a. the precise statutory provision relied upon for the charge or indictment, including any aggravating factors that may be relied upon by the prosecution to establish first degree murder under R.S. 14:30;

b. any aggravating circumstances that may be relied upon by the prosecution in support of a sentence of life without parole;

c. any evidence that may be relied upon by the prosecution in support of the argument that the client is the "worst offender";

d. any written, recorded or oral statement, confession or response to interrogation made by or attributed to the client. Such discovery should, where possible, include a copy of any such confession or statement, the substance of any oral confession or statement and details as to when, where and to whom the confession or statement was made;

e. any record of the clients arrests and convictions and those of potential witnesses;

f. any information, document or tangible thing favorable to the client on the issues of guilt or punishment, including information relevant for impeachment purposes;

g. any documents or tangible evidence the state intends to use as evidence at trial, including but not limited to: all books, papers, documents, data, photographs, tangible objects, buildings or places, or copies, descriptions, or other representations, or portions thereof, relevant to the case;

h. any documents or tangible evidence obtained from or belonging to the client, including a list of all items seized from the client or from any place under the clients dominion;

i. any results or reports and underlying data of relevant physical or mental examinations, including medical records of the victim where relevant, and of scientific tests, experiments and comparisons, or copies thereof, intended for use at trial or favorable to the client on the issues of guilt or punishment;

j. one half of any DNA sample taken from the client;

k. any successful or unsuccessful out-of-court identification procedures undertaken or attempted;

l. any search warrant applications, including any affidavit in support, search warrant and return on search warrant;

m. any other crimes, wrongs or acts that may be relied upon by the prosecution in the guilt phase;

n. any other adjudicated or unadjudicated conduct that may be relied upon by the prosecution in the sentencing phase;

o. any victim impact information that may be relied upon by the prosecution in the sentencing phase, including any information favorable to the client regarding the victim or victim impact;

p. any statements of prosecution witnesses, though counsel should be particularly sensitive to the effect of any reciprocal discovery obligation triggered by such discovery;

q. any statements of co-conspirators;

r. any confessions and inculpatory statements of co-defendant(s) intended to be used at trial, and any exculpatory statements; and

s. any understanding or agreement, implicit or explicit, between any state actor and any witness as to consideration or potential favors in exchange for testimony, including any memorandum of understanding with a prisoner who may seek a sentence reduction.

4. Counsel should ensure that discovery requests extend to information and material in the possession of others acting on the government's behalf in the case, including law enforcement. This is particularly important where the investigation involved more than one law enforcement agency or law enforcement personnel from multiple jurisdictions.

5. Counsel should take all available steps to ensure that prosecutors comply with their ethical obligations to disclose favorable information contained in Rule 3. 8(d) of the Louisiana Rules of Professional Conduct.

6. Counsel should ensure that discovery requests extend to any discoverable material contained in memoranda or other internal state documents made by the district attorney or by agents of the state in connection with the investigation or prosecution of the case; or of statements made by witnesses or prospective witnesses, other than the client, to the district attorney, or to agents of the state.

7. Counsel should not limit discovery requests to those matters the law clearly requires the prosecution to disclose but should also request and seek to obtain other relevant information and material.

8. When appropriate, counsel should request open file discovery. Where open file discovery is granted, counsel should ensure that the full nature, extent and limitations of the open file discovery policy are placed on the court record. Where inspection of prosecution or law enforcement files is permitted, counsel should make a detailed and complete list of the materials reviewed and file this list into the court record.

9. Counsel should seek the timely production and preservation of discoverable information, documents or tangible things likely to become unavailable unless special measures are taken. If counsel believes the state may destroy or consume in testing evidence that is significant to the case (e.g., rough notes of law enforcement interviews, 911 tapes, drugs, or biological or forensic evidence like blood or urine samples), counsel should also file a motion to preserve evidence in the event that it is or may become discoverable.

10. Counsel should establish a thorough and reliable system of documenting all requests for discovery and all items provided in discovery, including the date of request and the date of receipt. This system should allow counsel to identify and prove, if necessary, the source of all information, documents and material received in discovery, when they were provided and under what circumstances. This system should allow counsel to identify and prove, where necessary, that any particular piece of information, document or material had not previously been provided in discovery.

11. Counsel should scrupulously examine all material received as soon as possible to identify and document the material received, to identify any materials that may be missing, illegible or unusable and to determine further areas of investigation or discovery. Where access is given to documents, objects or other materials counsel should promptly and scrupulously conduct an inspection of these items and carefully document the condition and contents of the items, using photographic or audio-visual means when appropriate. Expert assistance should be utilized where appropriate to ensure that a full and informed inspection of the items is conducted. Where a reproduction of an original document or item is provided (including photocopies, transcripts, photographs, audio or video depictions) counsel should promptly and scrupulously inspect and document the original items in order to ensure the accuracy of the reproduction provided and to identify any additional information available from inspection of the original that may not be available from the reproduction.

12. Counsel should file with the court an inventory of all materials received or inspected in discovery. This inventory should be sufficiently detailed to identify precisely each piece of information, document or thing received including, for example, how many pages a document contained and any pages that may have been missing.

13. Unless strong strategic considerations dictate otherwise, counsel should ensure that all discovery requests are made in a form that will allow counsel to enforce the requests to the extent possible and to seek the imposition of sanctions for non-compliance. Counsel should seek prompt compliance with discovery demands.

14. Where the state asserts that requested information is not discoverable, counsel should, where appropriate, request an in camera inspection of the material and seek to have the withheld material preserved in the record under seal. Counsel should recognize that a judge undertaking in camera review may not have sufficient understanding of the possible basis for disclosure, especially the ways in which information may be favorable to defense in the particular case. Where in camera review is undertaken, counsel should take all available steps to ensure that the judge is sufficiently informed to make an accurate assessment of the information, including through the use of ex parte and under seal proffer, where appropriate and permissible.

15. Counsel should timely comply with requirements governing disclosure of evidence by the defendant and notice of defenses and expert witnesses. Counsel also should be aware of the possible sanctions for failure to comply with those requirements. Unless justified by strategic considerations, counsel should not disclose any matter or thing not required by law and should seek to limit both the scope and timing of any defense discovery. Counsel should take all reasonable steps to prevent the prosecution from obtaining private or confidential information concerning the client, including matters such as medical, mental health, social services, juvenile court, educational and financial information. Counsel should be wary of discussing any confidential matters over the recorded jail phones.

16. Counsel should understand the law governing the prosecutions power to require a defendant to provide non-testimonial evidence (such as handwriting exemplars, lineups, photo show-ups, voice identifications, and physical specimens like blood, semen, and urine), the circumstances in which a defendant may refuse to do so, the extent to which counsel may participate in the proceedings, and the required preservation of the record. Counsel should raise appropriate objections to requests for non-testimonial evidence and should insist on appropriate safeguards when these procedures are to occur. Counsel should also prepare the client for participation in such procedures. Counsel should accompany the client, insist that the police not require the client to answer any questions and, if necessary, return to court before complying with the order.

G. The Duty to File Pretrial Motions

1. Counsel at every stage of the case, exercising professional judgment in accordance with these standards should consider all legal and factual claims potentially available, including all good faith arguments for an extension, modification or reversal of existing law. Counsel should thoroughly investigate the basis for each potential claim before reaching a conclusion as to whether it should be asserted.

2. Counsel should give consideration to the full range of motions and other pleadings available and pertinent to a JLWOP case when determining the motions to be filed in the particular case, including motions to proceed ex parte. Counsel should file motions tailored to the individual case that provide the court with all necessary information, rather than pro forma or boilerplate motions. The requirement that counsel file motions tailored to the individual case is not a prohibition against also filing motions that raise previously identified legal issues, nor is it a prohibition on the filing of boilerplate motions where no tailoring of the motion is necessary or appropriate in the case.

3. The decision to file pretrial motions and memoranda should be made after considering the applicable law in light of the circumstances of each case. Each potential claim should be evaluated in light of:

a. the unique characteristics of juvenile law and practice;

b. the unique characteristics of a sentencing hearing for a juvenile facing a possible sentence of life without parole;

c. the potential impact of any pretrial motion or ruling on the strategy for the sentencing phase;

d. the near certainty that all available avenues of appellate and post-conviction relief will be pursued in the event of conviction and imposition of a life without parole sentence;

e. the importance of protecting the clients rights against later contentions by the government that the claim has been waived, defaulted, not exhausted, or otherwise forfeited;

f. the significant limitations placed upon factual development of claims in subsequent stages of the case; and

g. any other professionally appropriate costs and benefits to the assertion of the claim.

4. Among the issues that counsel should consider addressing in pretrial motions practice are:

a. matters potentially developed in early stages of investigation and discovery, including:

i. the pretrial custody of the accused, including the appropriate bond amount and the need for an adversarial hearing to explore the same;

ii. the need to divest the criminal court of jurisdiction or the improper or unwarranted transfer of the client to criminal court;

iii. the need for appropriate, ongoing and confidential access to the client by counsel, investigators, mitigation specialists and experts;

iv. the need for a preliminary hearing, including a post-indictment preliminary hearing;

v. the statutory, constitutional and ethical discovery obligations including the reciprocal discovery obligations of the defense;

vi. the need for and adequacy of a bill of particulars;

vii. the need for and adequacy of notice of other crimes or bad acts to be admitted in the guilt or sentencing phase of trial;

viii. the need for and adequacy of notice of any victim impact evidence;

ix. the preservation of and provision of unimpeded access to evidence and witnesses;

x. the use of compulsory process to complete an adequate investigation, including the possible use of special process servers;

xi. the prevention or modification of any investigative or procedural step proposed by the state that violates any right, duty or privilege arising out of federal, state or local law or is contrary to the interests of the client;

xii. access to experts or resources required by, among other things, these standards which may be denied to an accused because of his indigence;

xiii. the clients right to a speedy trial;

xiv. the clients right to a continuance in order to adequately prepare his or her case;

xv. the need for a change of venue;

xvi. the need to obtain a gag order;

xvii. the need to receive notice of and be present at hearings involving co-defendants and to receive copies of pleadings filed by any co-defendant;

xviii. the dismissal of a charge on double jeopardy grounds;

xix. the recusal of the trail judge, the prosecutor and/or prosecutors office;

xx. competency of the client;

xxi. intellectual disability;

xxii. the nature, scope and circumstances of any testing or assessment of the client;

xxiii. extension of any motions filing deadline or the entitlement to file motions after the expiration of a motions deadline; and

xxiv. requiring the state to respond to motions in writing;

b. matters likely to be more fully developed after comprehensive discovery, including:

i. the constitutionality of the implicated statute or statutes;

ii. the constitutionality of a juvenile life without parole sentence generally, as applied in Louisiana, and as applied to the clients case;

iii. the potential defects in the grand jury composition, the charging process or the allotment;

iv. the sufficiency of the charging document under all applicable statutory and constitutional provisions, as well as other defects in the charging document such as surplusage in the document which may be prejudicial;

v. any basis upon which the indictment may be quashed;

vi. the adequacy and constitutionality of any aggravating factors or circumstances;

vii. the propriety and prejudice of any joinder of charges or defendants in the charging document;

viii. the permissible scope and nature of evidence that may be offered by the prosecution in aggravation of sentence or by the defense in mitigation of sentence;

ix. abuse of prosecutorial discretion in seeking a sentence of life without parole;

x. the suppression of evidence or statements gathered or presented in violation of the Fourth, Fifth or Sixth Amendments to the United States Constitution, or corresponding state constitutional and statutory provisions with special attention to the particular issues raised by the clients age and attendant circumstances;

xi. suppression of evidence or statements gathered in violation of any right, duty or privilege arising out of state or local law with special attention to the particular issues raised by the clients age and attendant circumstances;

xii. the admissibility of evidence of other crimes, wrongs or acts that may be relied upon by the prosecution in the guilt phase with special attention to the particular issues raised by the clients age and attendant circumstances;

xiii. the admissibility of any unrelated criminal conduct that may be relied upon by the prosecution in the sentencing phase with special attention to the particular issues raised by the clients age and attendant circumstances;

xiv. the suppression of a prior conviction obtained in violation of the defendants right to counsel;

xv. notices of affirmative defenses with all required information included; and

xvi. notices necessary to entitle the client to present particular forms of evidence at trial, such as alibi notice and notice of intention to rely upon mental health evidence;

c. matters likely arising later in pretrial litigation and in anticipation of trial, including:

i.in limine motions to exclude evidence that is inadmissible as a result of a lack of relevance, probative force being outweighed by prejudicial effect, the lack of a necessary foundation, failure to satisfy the threshold for expert evidence or for other reasons;

ii. the constitutionality of the scope of and any limitations placed upon any affirmative defense or the use of a particular form of favorable evidence;

iii. the competency of a particular witness or class of witnesses;

iv. the nature and scope of victim impact evidence;

v.in limine motions to prevent prosecutorial misconduct or motions to halt or mitigate the effects of prosecutorial misconduct;

vi. matters of trial evidence or procedure at either phase of the trial which may be appropriately litigated by means of a pretrial motion in limine;

vii. matters of trial or courtroom procedure, including: recordation of all proceedings, including bench and chambers conferences; timing and duration of hearings; prohibition of ex parte communications; manner of objections; ensuring the clients presence at hearings; medication of the client; avoiding prejudice arising from any security measures;

viii. challenges to the process of establishing the jury venire;

ix. the desirability of jury determination of sentence;

x. the use of a jury questionnaire;

xi. the manner and scope of Voir dire, the use of cause and peremptory challenges and the management of sequestration;

xii. the desirability and circumstances of the jury viewing any scene; and

xiii. the instructions to be delivered at guilt and sentencing;

d. counsel should withdraw or decide not to file a motion only after careful consideration, and only after determining whether the filing of a motion may be necessary to protect the clients rights, including later claims of waiver or procedural default. In making this decision, counsel should remember that a motion has many objectives in addition to the ultimate relief requested by the motion. Counsel thus should consider whether:

i. the time deadline for filing pretrial motions warrants filing a motion to preserve the clients rights, pending the results of further investigation;

ii. changes in the governing law might occur after the filing deadline which could enhance the likelihood that relief ought to be granted; and

iii. later changes in the strategic and tactical posture of the defense case may occur which affect the significance of potential pretrial motions.

5. Counsel should timely file motions according to the applicable rules and caselaw, provide notice of an intention to file more motions where appropriate, reserve the right to supplement motions once discovery has been completed, offer good cause and seek to file appropriate motions out of time and seek to file necessary and appropriate motions out of time even where good cause for delay is not available. If counsel needs more time to file a motion, counsel should request more time.

6. Counsel should give careful consideration before joining in co-defendants motions and should avoid any possibility that the client will be deemed to have joined in a co-defendants motions without a knowing, affirmative adoption of the motions by counsel.

7. As a part of the strategic plan for the case, counsel should maintain a document describing the litigation theory in the case, including a list of all motions considered for filing and the reason for filing or not filing each motion considered. The litigation theory document should also detail the timing and disposition of all motions. The current litigation theory document and any prior drafts of the document should be maintained in the clients file. See performance standard 2127(E), development of a strategic plan for the case.

H. Preparing, Filing, and Arguing Pretrial Motions

1. Motions should be filed in a timely manner, should comport with the formal requirements of the court rules and should succinctly inform the court of the authority relied upon. Counsel should seek an evidentiary hearing for any motion in which factual findings or the presentation of evidence would be in the clients interests. Where an evidentiary hearing is denied, counsel should make a proffer of the proposed evidence.

2. When a hearing on a motion requires the taking of evidence, counsel's preparation for the evidentiary hearing should include:

a. factual investigation and discovery as well as careful research of appropriate case law relevant to the claim advanced;

b. the subpoenaing of all helpful evidence and the subpoenaing and preparation of all witnesses with information pertinent to the instant or future proceedings;

c. full understanding of the burdens of proof, evidentiary principles and trial court procedures applying to the hearing, including the benefits and potential consequences of having the client and other defense witnesses testify;

d. familiarity with all applicable procedures for obtaining evidentiary hearings prior to trial;

e. obtaining the assistance of expert witnesses where appropriate and necessary;

f. careful preparation of any witnesses who are called, especially the client;

g. careful preparation for and conduct of examination or cross-examination of any witness, having particular regard to the possibility that the state may later seek to rely upon the transcript of the evidence should the witness become unavailable;

h. consideration of any collateral benefits or disadvantages that may arise from the evidentiary hearing;

i. obtaining stipulation of facts by and between counsel, where appropriate; and

j. preparation and submission of a memorandum of law where appropriate.

3. When asserting a legal claim, counsel should present the claim as forcefully as possible, tailoring the presentation to the particular facts and circumstances in the clients case and the applicable law in the particular jurisdiction. Counsel should pursue good faith arguments for an extension, modification or reversal of existing law.

4. Counsel should ensure that a full record is made of all legal proceedings in connection with the claim. If a hearing on a pretrial motion is held in advance of trial, counsel should obtain the transcript of the hearing where it may be of assistance in preparation for or use at trial.

5. In filing, scheduling, contesting or consenting to any pretrial motion, including scheduling orders, counsel should be aware of the effect it might have upon the clients statutory and constitutional speedy trial rights.

I. Continuing Duty to File Motions

1. Counsel at all stages of the case should be prepared to raise during subsequent proceedings any issue which is appropriately raised at an earlier time or stage, but could not have been so raised because the facts supporting the motion were unknown or not reasonably available.

2. Further, counsel should be prepared to renew a motion or supplement claims previously made with additional factual or legal information if new supporting information is disclosed or made available in later proceedings, discovery or investigation.

3. Where counsel has failed to timely provide a required notice or file a motion, counsel should seek to file the motion or notice out of time regardless of whether good cause exists for the earlier failure to file and be prepared to present any argument for good cause that is available. Where a court bars a notice or motion as untimely, counsel should ensure that a copy of the notice or motion is maintained in the record and available for any subsequent review.

4. Counsel should also renew pretrial motions and object to the admission of challenged evidence at trial as necessary to preserve the motions and objections for appellate review.

5. Counsel shall have the discretion to assist incarcerated clients seeking redress of institutional grievances or responding to institutional proceedings and should do so where the resolution of the grievance or proceeding is likely to be of significance in the JLWOP proceeding.

J. Duty to File and Respond to Supervisory Writ Applications

1. Where appropriate, counsel should make application for supervisory writs in the Circuit Court of Appeal or the Louisiana Supreme Court following an adverse district court ruling or failure to rule. Counsel should give specific consideration to: the extent to which relief is more likely in an interlocutory posture or after a final decision on the merits of the case; the extent of prejudice from the ruling of the district court and the likely ability to demonstrate that prejudice following a final decision on the merits of the case; the impact of the district courts current ruling on the conduct of the defense in the absence of intervention by a reviewing court; the impact of a ruling by a reviewing court in a writ posture on any subsequent review on direct appeal; the adequacy of the record created in the district court and whether the record for review may be improved through further district court proceedings.

2. Counsel should seek expedited consideration or a stay where appropriate and consider the simultaneous filing of writ applications in the Court of Appeal and Supreme Court in emergency circumstances.

3. Counsel should take great care to ensure that all filings in the Courts of Appeal and the Louisiana Supreme Court comply with the requirement of the relevant Rules of Court, including any local rules.

4. Counsel should ensure that an adequate record is created in the district court to justify and encourage the exercise of the supervisory jurisdiction of the Courts of Appeal or Louisiana Supreme Court.

5. Counsel should seek to respond to any state application for supervisory writs except where exceptional circumstances justify the choice not to respond.

6. A lack of adequate time, resources or expertise is not an adequate reason for failing to make application for supervisory writs or failing to respond to a state application. Where counsel lacks adequate time, resources or expertise, counsel should take all available steps to ensure that the defense team has sufficient time, resources and expertise, including seeking assignment of additional counsel. Counsel shall ensure that the role of lack of time or resources upon the decision to file a writ application is reflected in the record.

La. Admin. Code tit. 22, § XV-2131

Promulgated by the Office of the Governor, Public Defender Board, LR 431933 (10/1/2017).

AUTHORITY NOTE: Promulgated in accordance with R.S. 15:148.