What Really Happens After a Trial: Taking A Closer Look at Post-Conviction Law with Professor Lee Kovarsky

Episode Notes

Transcript

Rocky Dhir:

Hi, and welcome to the State Bar of Texas Podcast. Much like Cindy Tisdale, one of our past state bar presidents. I’m a fan of Ted Lasso. I dunno, I just like the show. I can’t stop watching it. But in the show there’s a character named Danny Rojas and he’s been known to say “football is life,” which is ridiculous. He was talking about soccer. And here in Texas we all know real football is everything. But that’s besides the point. Litigators though for us trial is life. For some clients, however, specifically those convicted of capital offenses trial can mean the exact opposite of life. This is where Lee Kovarsky comes in. Lee is a member of the American Law Institute specializing in civil and criminal procedure, criminal justice, and federal jurisdiction. He is the Bryant Smith chair in law and the co-director of the Capital Punishment Center at the University of Texas School of Law. He’s a pretty important guy, but most saliently for our purposes, Lee represents prisoners awaiting execution and specializes in post-conviction law. I know about many of you, I didn’t know that even existed, but now we’re about to find out, so we don’t talk a whole lot about what happens after the trial. So we’re going to do that right now with Professor Lee Kovarsky, welcome.

Lee Kovarsky:

Thank you for having me, Rocky.

Rocky Dhir:

Absolutely, absolutely. So I was intrigued and I wanted to find out more. So let’s talk first about what post-conviction representation, is it different from appealing the verdict and sentence? I mean, how does it differ from that and what’s it involve?

Lee Kovarsky:

Sure. An appeal is what everybody knows. There’s a judgment in the trial court and then you ask senior courts in a judicial system to review it. Post-conviction litigation is a collateral challenge to the conviction that takes place after the judgment goes final in appellate review. And so there can be post-conviction proceedings either in state court or in federal court, and in many instances both.

Rocky Dhir:

Is this representing them in a habeas proceeding or is this something beyond that? Does it relate back to the original trial or is this something completely different?

Lee Kovarsky:

So the federal proceedings are called habeas proceedings, and some states call it that habeas is a little bit broader than just post-conviction proceedings. Obviously it reaches someone locked in the London Tower without a key on order of the king or something, right? Military detention, immigration proceedings. But federal habeas is the procedural vehicle by which post-conviction review happens in federal courts. And it’s not technically part of the trial proceeding, but of course, given that the point of post-conviction review is to uncover the lawfulness or unlawfulness of the underlying detention, those proceedings invariably focus on errors at trial.

Rocky Dhir:

When we talk about capital offenses, those who have been convicted and sentenced to the death penalty, what kind of work are you specializing in? What are you doing for these clients that most of us ordinary lawyers may not be with?

Lee Kovarsky:

So capital cases are unique in that there are demands on the representation that extend far beyond when trial and appellate review of the judgment concludes. There’s not a lot of post-conviction review and a lot of criminal cases just because the length of time for post-conviction review is often longer than the sentence itself. And so there’s no practical point. But in capital cases, the way the stakes work out is that everybody wants post-conviction review.

Rocky Dhir:

Are we talking about mandatory appeals there? Is that what you meant by everybody wants a post-conviction review? Is that the mandatory review of the sentence in a capital case or are you talking about something different?

Lee Kovarsky:

I’m not talking about a mandatory review under law. I’m talking more in terms of practical preferences and considerations. If I’ve got a two year sentence and it takes me five years to litigate my post-conviction application than as a practical matter, there’s not going to be a lot of post-conviction litigation attacking that type of sentence because the post-conviction litigation would take too long. But if you’ve got a 50 year sentence or a death penalty, then all of those people are going to want to seize the opportunity to use the post-conviction vehicle to challenge the sentence. And so what I do reflects the unique structure of capital sentencing and the system of American punishment. And so everybody gets a guilt and innocence verdict.

Rocky Dhir:

Sure,

Lee Kovarsky:

You’re only in prison if you’re found guilty by a court of law if it’s sustained on appeal. But what’s different about capital cases is that the eighth amendment requires a set of special proceedings for fixing the sentence. And so a lot of what capital post-conviction lawyers do is focused on that phase of the proceeding, which again is unique to capital cases. Now there’s a lot of work that we do that focuses on the guilt. Phase two, was the defendant the one who fired the lethal shot? Was there a case of mistaken identity? Now of course, those kinds of issues show up in cases whether capital or non-capital.

Rocky Dhir:

At what point should a lawyer, presumably a criminal defense attorney, at what point should he or she bring a post-conviction specialist in? And what I mean by this is appellate lawyers often say, bring us into the trial itself because we can help you preserve error and sort of preserve your best issues for appeal for a post-conviction specialist. At what point do they come in?

Lee Kovarsky:

So there’s actually an interesting conflict of interest rule that drives the answer to your question. I mean, by far the most common post-conviction challenge is ineffective assistance of counsel under the Sixth Amendment. And if you are going to be a post-conviction lawyer scrutinizing the effectiveness of trial counsel, you can’t have been involved with decision making at the trial. So invariably, the appointment of post-conviction counsel takes place after the trial has concluded. For example, in Texas at in capital cases, I don’t want to swear by non-capital cases. In capital cases, the appointment of the post-conviction lawyer happens after entry of judgment in the trial phase of the proceeding. So basically capital post-conviction counsel will be appointed while the appeal is pending.

Rocky Dhir:

Gotcha. There really are two different sets of lawyers. You don’t want the same folks handling it at trial versus post-conviction.

Lee Kovarsky:

Correct. In fact, they’re never the same lawyers.

Rocky Dhir:

Got it. Okay. Sit tight. We’re going to come back and talk a little bit about preparing clients for life after conviction, and we’re going to hear from Lee about what he can tell us on those aspects. So sit tight. We’ll be back in just a few. And we are back with Professor Lee Kovarsky as we discuss post-conviction relief, especially in the capital punishment context. Now look Lee, let’s talk a little bit about preparing a client for post-conviction life. I don’t know how much of that you get into, but this is something that’s always kind of fascinated me. You’re dealing with a client during the guilt or innocence phase, you’re going to trial if they’re out on bail, the real realities of what life is like after conviction may not have fully hit them. Are there things that lawyers should be doing to get their clients mentally prepared for life after conviction because you see them after that’s already taken place. So are there things that need to take place ahead of time to kind of get them more ready for that?

Lee Kovarsky:

I would say yes. And then your follow-up question will be like, well, what are those things?

Rocky Dhir:

What are those things? Lee?

Lee Kovarsky:

I honestly don’t know how one talks through the possibility of being behind bars for the rest of their lives. I dunno what could say. I don’t know how one could coach someone into being mentally ready. And although there’s a lot that I deal with in my practice that goes well beyond what people think of a formal legal representation. And I do spend a lot of time helping clients and people who aren’t formally clients deal with the experiential reality of spending their life in prison in terms of prepping people for it. I just don’t know how you do that. Part of me wants to say don’t give people false hope. And part of me wants to say, give people false hope. It’s just such an impossible change from the way that folks have lived their lives to date. I don’t know that there’s anything you could say or do for someone that would get them ready for it. And everybody’s adjustment is going to be different and unpredictable

Rocky Dhir:

As you deal with and work with clients after they’ve been convicted. Is there a most common complaint they have of their trial counsel? That’s their perception. And then for you coming in post-conviction, do you have a different view? Is there something that criminal lawyers need to be particularly aware of when they’re defending clients prior to the conviction? So it’s really a two-part question. What do clients complain about most with regards to their criminal defense? And then what do you see as the actual mistakes that most criminal defense lawyers might be making? They just don’t realize it.

Lee Kovarsky:

I think a lot of clients think that their stories and their accounts aren’t taken seriously enough by their defense lawyers just empirically, that’s my observation of the complaints are. And the defense lawyers will invariably say that like any defense lawyers in any kind of criminal case, they say that they play the hand that they’re dealt and that they made their decisions in reference to the evidence that was available to prove the things they need to prove to minimize the expected penalty on the client. The other thing that they often will complain about, and the first thing that I said is that defense lawyers didn’t necessarily take them seriously as human beings. And I don’t want to overgeneralize, I’m not even saying most defense lawyers are like that or anything like that, but the experience of a lot of capital defendants is just sort of not being heard and taken seriously and therefore lacking the type of relationship and channels of communication they wanted to have with their defense counsel. I think in reality, the thing that I see most commonly in my capital defense work is specific to the capital sentencing phase of a death penalty case, which is the failure of defense counsel to do an adequate what’s called mitigation investigation.

Rocky Dhir:

Tell us about that. What’s involved there?

Lee Kovarsky:

The defining uniqueness of death penalty litigation is that the eighth Amendment requires a separate sentencing phase proceeding in death penalty cases. That proceeding exists for the purposes of allowing the defendant to introduce evidence that mitigates culpability does some other stuff too, but basically shows that they’re not morally accountable to the degree that one might otherwise think on the basis of the conviction. And my most common experience is when there are mistakes, it’s the failure to investigate the types of mitigation evidence that might have been effective at the sentencing phase of the capital proceeding.

Rocky Dhir:

This is actually a very interesting topic, the mitigation phase post-conviction. Let’s take another break. We’re going to hear from another one of our sponsors. We’re going to be back in just a couple of minutes and then we’re going to keep talking with Lee Kovarsky about mitigating death penalty cases and the mitigation investigation that must take place. So stay tuned. We’ll be right back. And we are back with Lee Kovarsky. We’re talking about post-conviction relief for death penalty defendants and how you represent them. When we were just about to break, Lee, you were talking about the mitigation investigation and sometimes where that might be a grounds for a complaint against the trial counsel. So let’s talk about what should a good mitigation investigation look like in your view?

Lee Kovarsky:

Sure. So there’s actually a set of guidelines by the American Bar Association for how to constitute a capital defense team. And those guidelines specify a team that’s actually pretty broad in its experience. Not only does it include lawyers, it also includes somebody who’s capable of identifying mental health issues and separately a mitigation investigator. And oftentimes the mitigation investigator works hand in glove not only with the attorneys, but also with the person qualified to identify mental health and cognitive issues to explore the defendant’s background and see what it is or what exists in the defendant’s background that might prove to a jury that the defendant is not as morally culpable as it might seem.

Rocky Dhir:

I’m hearing all this. It all sounds really great and workable in theory, and if I was representing Jeff Bezos or Elon Musk, sure, great, but what do I do when I’ve got a client who can’t afford that kind of a team? How do you protect their rights and get them the right mitigation investigation to protect them should something happen?

Lee Kovarsky:

Constitutional law that says an effective defense representation has to include an effective mitigation representation. Now, of course, the constitution in that respect. And so the question is all about constitution

Rocky Dhir:

And paying the bills, is it? Yeah,

Lee Kovarsky:

Right. And so you rely on statutes and judges to enforce it and lawyers to do it right, and lawyers have to ask courts to pay for their mental health and mitigation specialists, and then those people have to go out and collect hospital records, school records, juvenile records. They have to do a bunch of interviews with people who knew the defendant before the crime took place. They have to consult with doctors capable of providing psychiatric diagnoses and they have to work up a mental health profile, a neurocognitive profile, and a social history to understand what this person’s life was. Because it’s only after you’re able to pixelate that picture that you can show it to a jury and have it mean anything.

Rocky Dhir:

Is there enough resources to go around to do all that for each case? Do courts pay for all that? Is that something that we’re able to effectively do?

Lee Kovarsky:

There’s enough resources to go around in theory, but courts underfund that function generally. Now this goes to the way we structure indigent defense in our country. A lot of times you can appoint a public defender and a public defender is going to have a pool of specialists they can draw from. But a lot of times there’s some lawyer that otherwise does private sector work that’s appointed to do the defense representation, and they may have to ask the court to pre-clear the resources. And in order to get that pre-clearance, they have to make a showing of necessity that will sometimes cause the court to deny it. And I think courts are oftentimes too frugal. So it’s really important for the lawyers to be aggressive in asking for those resources and to substantiate those requests with evidence because otherwise courts are just going to say, ah, this is a fishing expedition.

Rocky Dhir:

Is that the same exercise for getting somebody like you involved for the post-conviction representation? We’re talking about talking here about the mitigation investigation that takes place, I guess after conviction prior to sentencing, but now the persons have been sentenced, now they’re awaiting a capital punishment at that point. Are courts also putting out enough resources for that kind of relief, or is that also something where there’s frugality and underfunding taking place?

Lee Kovarsky:

Yeah, there’s underfunding and I will say that the best practices are that the post-conviction investigator do their own mitigation investigation because you can only understand what it is that prior counsel didn’t find if you investigate those red flags that they overlooked. That being said, that happens as a matter of course when a federal public defender is appointed, and it is much more difficult to get the resources to do that sort of federal post-conviction work, at least if you are not part of a federal defender, and instead a private attorney that’s been appointed and has to ask the court for the resources. And I think that a lot of that bifurcated set of outcomes, that’s not just across federal jurisdictions, but in state jurisdictions too, depending on whether you’ve appointed a public defender or a private attorney.

Rocky Dhir:

If you don’t mind, maybe walk us through, I dunno if there’s such thing as a typical case that you ever deal with. It sounds like yours is a pretty variegated practice, but when you’re doing post-conviction representation, particularly in the death penalty context, can you walk us through maybe an example of the kind of case or the kinds of issues that you would be dealing with? So a client would come to you for what? And at that point, what does that trigger for you as a lawyer? I think for people like me, this helps us understand what it is you do and where you fit into the litigation puzzle. Most of us know what a criminal defense lawyer is. Most of us know what a corporate lawyer is post-conviction, capital punishment representation. That’s a niche, and I don’t know that I’m familiar with that. So can you walk me through what a case would look like that you might handle?

Lee Kovarsky:

So I’ll just speak through an example in Texas, which is the jurisdiction I’ve worked in my whole life.

Rocky Dhir:

That’s the only state that really matters, so that’s great. Yes.

Lee Kovarsky:

And also sadly produces a lot of these scenarios.

Rocky Dhir:

Well, there you go. Right.

Lee Kovarsky:

So what happens is there’s a conviction in a sentence, effort entered, and while the appeal is pending, the trial court has to appoint a state post-conviction lawyer. In Texas, a substantial part of the state post-conviction representation is undertaken by something called the Office of Capital and Forensic Ritz. That office hasn’t been around forever, and

Rocky Dhir:

I never heard of it. You learn something new every day.

Lee Kovarsky:

Basically, the post-conviction, public defender in capital cases in Texas, and the representation in the state post-conviction phase was horrible before OCFW arrived on the scene. It’s gotten better since then in part because OCFW is a set of specialists with best practices and institutional knowledge and of economies of scale and all that stuff.

Rocky Dhir:

When was it established?

Lee Kovarsky:

I want to say 2014, 2013, something like that. But last

Rocky Dhir:

10 years or so,

Lee Kovarsky:

Yeah, a little longer than that I think. And I have a bunch of friends who work at that office and they’re all going to kill me for being off by five years. So I apologize if any of you are listening to this.

Rocky Dhir:

Hey, we just want them to listen, but just listen to the podcast.

Lee Kovarsky:

And then the case moves through state post-conviction review, and if the Texas State Courts inspect the conviction and don’t vacate it, then it moves into federal post-conviction, or as you’ve described it, federal habeas. And when it moves into federal habeas, that’s my sort of core area of expertise. It’ll often be representation that is assumed by a different lawyer than the state post-conviction lawyer even. And in Texas, there’s a couple of different capital habeas units that are otherwise known as choose that are nestled inside the federal public defender’s offices, and they have a big footprint in terms of which clients they take. And then there’s a bunch of other clients that are serviced by appointees that otherwise have private practices or that are nonprofit organizations, but basically capital defendants that aren’t serviced by the choose and are using the term when a client reaches out to me.

And that does happen in some indirect way, but because in the capital context, we’re talking about a reasonably small set of folks, we’ve been tracking these folks all the way through, and most of them, a lot of them are now funneled through OCFW, that state organization that I described. And when the representation moves from state court into federal court, OCFW actually files something in federal court making a recommendation about who the federal post-conviction lawyer should be. So that’s actually how most of the representations transition from state court to federal court. Now, it works differently in non-capital cases, in part because you are entitled to post-conviction representation in capital cases under statutes, but you’re not necessarily entitled if you’re not a capital defendant under statutes.

Rocky Dhir:

And if we could, can you tell us just maybe an example of the issue that you might be dealing with when you’re appointed in these cases?

Lee Kovarsky:

So in these cases, the most common issue present in roughly like 85, 80 6% of the cases that we see is the representation of defense counsel.

Rocky Dhir:

So it’s ineffective assistance,

Lee Kovarsky:

The effectiveness of counsel, right, and effective assistance. And that could be at the guilt phase or often at the sentencing phase. The other issue that we see in over 60% of the cases is something I’m going to call Brady, but actually touches on all sorts of prosecutor mischief, mishegoss kind of issues. The most common is actually a Brady issue that in other words, when a prosecutor doesn’t disclose exculpatory information to the defense counsel, then we often litigate issues of mental health or cognitive functioning. So it used to be called mental retardation, now it’s called intellectual disability or serious mental illness. And there’s a bunch of other claims that are litigated less frequently, but that’s the center of the capital post-conviction practice. And with respect to ineffective assistance in Brady claims, I think the center of all post-conviction, practice capital and non-capital.

Rocky Dhir:

One final question, and this really is for the law students from maybe the young lawyers who’ve tuned in, if they’re interested in this line of work, what are some of the key skills or key practice areas that they need to kind of focus on?

Lee Kovarsky:

I think that students come to law school, and I think they have to learn black letter law. I would really encourage students to develop client and interpersonal communication skills, which involve translating legal concepts for people that aren’t necessarily lawyers. And that’s not because you’re talking to the press or anything. It’s because you’ve got to communicate with clients who are often very impaired. They’re often from very different cultural backgrounds. But also, in order to do a lot of capital defense representation, you have to go out into communities, into places that you don’t go to for other kinds of representation and communicate and gather facts from those communities. And it’s just incredibly important to know how to do investigatory and fact development work to do that.

Rocky Dhir:

Professor Lee Kovarsky, thank you so much for being here today.

Lee Kovarsky:

Thank you for having me.

Rocky Dhir:

Absolutely. Do investigate further. We’d love to see more people out there doing this kind of work. So you’re out there fighting the good fight. And of course, we want to thank you for tuning in. We want to encourage you to stay safe and be well. If you like what you heard today, please rate and review us, an Apple podcast, Google podcast, or your favorite podcasting app. Until next time, remember, life’s a journey, folks. I’m Rocky Deer. Signing off for now.