La. Admin. Code tit. 22 § XV-2137

Current through Register Vol. 50, No. 11, November 20, 2024

Section XV-2137 - Post-Verdict Motions and Formal Sentencing

A. Motion for a New Trial and Other Post-Verdict Motions

1. Counsel should be familiar with the procedures and availability of motions for new trial, for arrest of judgment and for a post-verdict judgment of acquittal, including the time period for filing such motions, the formal requirements of each motion, the evidentiary rules applicable to each motion and the grounds that can be raised.

2. A motion for new trial should be filed in each case where a life without parole sentence is imposed. A motion in arrest of judgment or for a post-verdict judgment of acquittal should be filed in each case in which there exists a colorable basis for the relief sought to be granted.

3. In preparing the motion for new trial, counsel should conduct an intensive and thorough investigation designed to identify and develop: evidence of prejudice arising from any adverse rulings of the trial court; evidence not discovered during the trial that would likely have changed the verdict at either guilt or sentencing phase; evidence of prejudicial error or defect not discovered before the verdict or judgment; and, evidence that would otherwise support an argument that the ends of justice would be served by the granting of a new trial.

4. Counsel should utilize all of the investigative tools described in these standards in conducting the investigation, including the use of fact investigators, mitigation specialists, experts, record requests, discovery requests, compulsory process and motions practice.

5. Recognizing that the post-verdict litigation represents a critical stage of proceedings that requires extensive investigation and development of potentially dispositive claims:

a. counsel should seek a postponement of formal sentencing for a sufficient period to allow adequate investigation and development of the motion for new trial or other post-verdict motions; and

b. counsel should seek additional resources sufficient to allow adequate investigation and development of the motion for new trial or other post-verdict motions.

6. In preparing and presenting claims in post-verdict motions, counsel should have particular regard to the need to fully plead the claims and their factual basis in a manner that will preserve the claims for subsequent review. Counsel should request an evidentiary hearing on the motion for new trial in order to present new evidence and preserve claims for appeal.

7. Counsel should prepare post-verdict motions urging that life without parole is not a legally permissible penalty in the circumstances of the case, including that the sentence would be constitutionally excessive, where such arguments are available under existing law, or under a good faith argument for the extension, modification, or reversal of existing law.

8. Counsel should review the court record and ensure that it is complete and that matters relevant to any future review of the case are contained in the record including, for instance, race and gender of jurors in the venire, juror questionnaires, jury questions during deliberations, and all defense proffers appropriate to preserve any defense objections for review.

9. Following formal sentencing, counsel shall continue to conduct an intensive investigation designed to identify and develop evidence not discovered during the trial that would likely have changed the verdict at either the guilt or sentencing phase in order that any available motion for new trial may be filed within one year of the verdict or judgment of the trial court.

B. Preparation for Formal Sentencing and the Sentence Investigation Report

1. In preparing for sentencing, counsel should:

a. inform the client of the sentencing procedure, its consequences and the next steps in the clients case, including any expected change in the clients representation;

b. maintain regular contact with the client prior to the sentencing hearing, and inform the client of the steps being taken in preparation for sentencing;

c. inform the client of his or her right to speak at the sentencing proceeding and assist the client in preparing the statement, if any, to be made to the court, considering the possible consequences that any statement may have upon the sentence to be imposed, any appeal or review, subsequent retrial or trial on other offenses;

d. become familiar with the procedures governing preparation, submission, and verification of the sentence investigation report. In addition, counsel should:

i. consider providing to the report preparer information favorable to the client;

ii. consider whether the client should speak with the person preparing the report; if the decision is made that the client not speak to the report preparer, the client should be advised to exercise his rights to silence and the presence of counsel and the report preparer should be advised that the client is asserting his right not to participate in an interview. If the determination is made for the client to speak to the report preparer, counsel should discuss the interview in advance with the client and attend the interview;

iii. obtain a copy of the sentence investigation report, once completed, and review the completed report with the client;

iv. file a written opposition to the factual contents of the reports where appropriate and seek a contradictory hearing.

C. Obligations of Counsel at Sentencing Hearing and Following Sentencing

1. Counsel should continue to actively advocate for a disposition other than the imposition of a life without parole sentence. Such advocacy should include presenting to the court evidence and argument in favor of any categorical bar to the imposition of a life without parole sentence and in support of an argument that life without parole, in the circumstances of the particular case, is unconstitutionally excessive. Counsels presentation should not be limited to existing law but should include all good faith arguments for an extension, modification or reversal of existing law.

2. Following the imposition of a sentence of life without parole, counsel should prepare and file a motion for reconsideration of sentence.

3. Upon denial of a motion for reconsideration, counsel should timely file a motion for appeal, including a comprehensive request for transcription of the proceedings and designation of the record as follows:

a. the minutes of all of the proceedings connected with the case;

b. the indictment and any and all proceedings concerning the appointment and/or selection of the grand jury;

c. the transcript of arraignment;

d. the transcript of all pre-trial proceedings regardless of whether defense counsel and the defendant were present;

e. the transcript of any proceeding in which allotment of the case occurred;

f. the transcript of any joint proceedings held with another defendant(s);

g. the transcript of the entirety of Voir dire, including the transcript of any communication made by the judge or the court staff whether within or outside the presence of defense counsel;

h. the transcript of all bench conferences, in chambers hearings or charge conferences;

i. the transcript of all argument and instruction;

j. the transcript of all testimony, including testimony at the sentencing phase of the trial;

k. any and all exhibits introduced in connection with the case;

l. the jury questionnaires, verdict forms, polling slips, and verdicts imposed in the case.

4. In the period following the imposition of a sentence of life without parole and the lodging of the appellate record, counsel should continue to actively represent the clients interests, including investigation and development of arguments relevant to a post-sentencing motion for new trial or defendants sentence investigation report. Counsel should take action to preserve the clients interests in his appeal, state post-conviction, federal habeas corpus and clemency proceedings pending the assignment of appellate counsel.

5. Where appropriate, counsel should timely file a post-sentencing motion for new trial.

6. Counsel shall continue to represent the client until successor counsel assumes responsibility for the representation. When counsels representation terminates, counsel shall cooperate with the client and any succeeding counsel in the transmission of the record, transcripts, file, and other information pertinent to appellate and post-conviction proceedings. Counsel should notify the client when the case assignment is concluded.

La. Admin. Code tit. 22, § XV-2137

Promulgated by the Office of the Governor, Public Defender Board, LR 431954 (10/1/2017).

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