The art of knowing when an affidavit from defense counsel is needed when he or she has been alleged ineffective
Routinely, affidavits are ordered in habeas corpus litigation, but let’s be honest: Even if a prosecutor has answered hundreds of Art. 11.07 applications for writs of habeas corpus, whether to request an affidavit for responding to an ineffective assistance of counsel (IAC) claim is something we debate and consider on a case-by-case basis.
What is a writ?
An 11.07 writ, in its simplest terms, is a post-conviction vehicle for relief. While issues raised on direct appeal are confined to the four corners of the record, a writ gives the applicant a chance to supplement the record and raise issues that would not otherwise be available. However, writs are limited to constitutional, fundamental, and jurisdictional claims that were not (and could not be) raised on direct appeal.
What is an IAC claim?
Probably the most common writ claim is that the applicant received ineffective assistance of defense counsel. Not only is it better raised on a writ because the record on direct appeal is rarely sufficient to prove it, but also most non-cognizable errors can be magically transformed into cognizable claims if raised as part of an IAC claim. To prove an IAC claim, the applicant (who has the burden during habeas proceedings) must show:
1) counsel’s representation fell below an objective standard of reasonableness; and
2) a reasonable likelihood exists that the outcome of the proceeding would have been different but for the alleged misconduct.
An IAC claim may be raised against trial and appellate counsel; one may be also raised when the defendant has pled guilty and is attacking counsel only during the punishment phase. How does the State respond to these claims? The answer is usually by requesting an affidavit from the complained-of counsel.
When is an affidavit necessary?
When I first started out nearly 15 years ago, I requested affidavits in almost every IAC case. Why? Was I playing it safe? Was I trying to buy some time to address the issues because the 15-day deadline for a response was not enough? Or did I just not know when one was truly needed? All of these reasons are probably partially true.
I quickly realized, though, that there are problems with requesting affidavits in all cases. First, before 2014, waiting on an affidavit could stall the habeas proceeding in the trial court for months or even years. Even now, untimely affidavits can force a trial court to request an extension from the Texas Court of Criminal Appeals (CCA). Second, sometimes defense attorneys do not realize the importance of their affidavit. When a defense attorney tries to respond to claims without reviewing his files or the trial transcript, he runs the risk of getting the basic facts wrong: dates, guilty plea vs. trial, plea bargain vs. open plea, jury vs. bench, etc. In a proceeding where credibility is important, it is difficult to cite to an affidavit or support a witness who swears to incorrect facts that are easily verifiable by the record. Third, we sometimes forget that a defense attorney also works full-time. While an unnecessary affidavit may make our job easier, reviewing the record and drafting an affidavit may take hours away from the defense attorney’s own work. Therefore, occasionally, it is better to resolve the issues without an affidavit.
It is important to remember that the applicant has the burden of proof. However, if he merely alleges facts which, if true, entitle him to relief, the CCA is going to want some substantive response. Consider whether the allegations even rise to the level of ineffective assistance. Most applications are filed pro se, so many of them fail to allege grounds that would even entitle the applicant to relief. For example, a claim that “my attorney failed to raise an insanity defense due to voluntary intoxication” does not need an affidavit because voluntary intoxication is not a defense. Likewise, the applicant may raise an issue that, on its face, would be contrary to any reasonable trial strategy. For example, an applicant saying that “my attorney failed to cross-examine my probation officer during my revocation hearing on the fact that she let me continually violate the conditions of my community supervision for two years before she filed on me” would not need an affidavit because it is a reasonable defense strategy to avoid highlighting additional, repeated violations of the supervision contract during a revocation hearing. In short, if the applicant fails to allege facts, which, if true, entitle him to relief, no affidavit is needed.
To know when an affidavit is needed, one must understand the purpose of an affidavit—that is, to provide the court with sufficient evidence to dispose of the issue. Therefore, our question is: Is the evidence in the record sufficient to resolve the issue, or does the State have access to sufficient evidence with which to supplement the record? If not, an affidavit is needed.
Sounds pretty easy, but sometimes the answer is not that clear. That may be why the vast majority of remands from the CCA are for affidavits from attorneys addressing IAC claims.
Are there magic words?
I used to advise that there were “magic words” for when an affidavit was needed. If the applicant used those magic words, an affidavit was needed regardless of alleged facts or supporting evidence. For example, words such as “failure to investigate,” “failure to advise,” and “improper advice” will likely need affidavits because the court’s record typically does not speak to what investigation counsel completed or what advice she gave her client. That’s what I used to say about magic words.
But I have since concluded that that should not be the end of the inquiry. First, we should not assume the record is silent. The attorney may have called her client to the stand before the plea or during the trial to discuss investigation and whether the client was happy with the representation on the record. The record may need to be ordered from the court reporter if the case was not appealed. Also, if the attorney was appointed, her bill may shed light on how much time was spent on investigation. Another option is an affidavit from the prosecutor supporting counsel’s actions. And, my personal favorite: An applicant may have written letters to the court prior to filing the application that may alleviate the need for an affidavit. For example, I once had an applicant complain that counsel promised him he would be eligible for parole after two years on a 40-year aggravated case. But in several letters to the judge, he told the judge his attorney advised him that he would need to serve 20 years before being eligible for parole. The applicant even included a sworn statement from a fellow inmate concurring that counsel advised him he would need to serve 20 years. In that case, no affidavit from counsel was needed.
For ineffective assistance of appellate counsel (IAAC) claims, the appellate court’s website may be helpful. A common claim is that appellate counsel failed to timely advise about the lower court’s affirmance of the trial court’s judgment, thus depriving the applicant of his pro se petition for discretionary review. But perhaps unknown to applicants, Rule 48.4 of the Texas Rules of Appellate Procedure requires a defense attorney to write a letter to the appellate court certifying that he advised his client of the court’s opinion within five days by certified mail and to include a copy of the return receipt. As these letters are filed and made part of the record, they are routinely available for download from the appellate court’s website. With that letter, no affidavit would be needed.
These, of course, are the easy examples. What if the appellate record, trial court’s file, and State’s file do not comment on counsel’s representation? Another thing to consider is whether the records and files may resolve the second IAC prong of harm.
“[A] court need not determine whether counsel’s performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies. The object of an ineffectiveness claim is not to grade counsel’s performance. If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, which we expect will often be so, that course should be followed.”
I will admit that, when analyzing an IAC case, I tend to focus more on the first prong—but the applicant must prove both. And the State’s file may demonstrate counsel was advised that the State was ready to re-indict for a higher offense right before the applicant pled guilty. The State’s file may also show the evidence was strong and the plea agreement was lower than the minimum the applicant was facing at trial. The trial file may also include the State’s notice of extraneous offenses, which would indicate how an applicant may have fared during a punishment hearing. All of this evidence can overcome a claim that a plea was involuntary due to ineffective assistance of counsel.
Now, the intent of this information is not to discourage the request for an affidavit. In a perfect world, all defense attorneys would review the trial record before filing an affidavit, all affidavits would respond completely to all IAC claims, and all defense attorneys would file their affidavits within one week of the request being made. And, when in doubt, get an affidavit. However, getting an unneeded affidavit may be more trouble than it’s worth. Requesting an affidavit requires an Order Designating Issues unless the attorney is willing to provide an affidavit within a ridiculously short amount of time. Affidavits require judges to sign orders, clerks to mail orders, and defense attorneys to make time to review their files and write affidavits. And remember, an affidavit may also run the risk of hurting an attorney’s credibility if he chooses not to review his files or the record before trying to remember what happened.
Checks and balances
Finally, what happens if you’ve chosen wrong? If the trial court recommends disposition without an affidavit and the CCA determines an affidavit was needed, the CCA will simply remand the case back to the trial court for an affidavit or a hearing. And the trial court also retains the right to either 1) order an affidavit even if not requested by the State or 2) deny the State’s request if it finds an affidavit is unnecessary. If an affidavit is not needed but ordered, the affidavit will be filed and considered. If an affidavit is needed, it will be ordered.
Ten tips and suggestions for IAC affidavits
1) Request an affidavit if:
• the record before the trial court is not sufficient to resolve the IAC claim.
• the State is unable to supplement the record sufficiently to resolve the IAC claim.
• the claim defeats the attorney-client privilege.
2) Get an order from the court instead—it will:
• protect the defense attorney (see ABA Opinion No. 10-456),
• establish a deadline,
• establish what is requested of the attorney, and
• make options, such as Show Cause Orders, available.
3) Request plenty of time for filing. I suggest 60 days from the date the State’s response is filed. Also make sure the trial court has enough time after the affidavit is due to determine whether the affidavit is sufficient or a hearing is needed.
4) Assist the defense attorney by:
• providing samples of the affidavit’s form and format,
• making the State’s file (minus work product) available,
• ordering the reporter’s record or clerk’s record (RR/CR) from the clerk’s office (check it back in, and allow the attorney to check it out if he needs to take it with him),
• being available to answer questions,
• reading the affidavit and recommending whether additional information is needed to adequately address the issues (if asked),
• offering to file a motion for extension if the attorney needs more time to produce the affidavit, and
• not writing the affidavit for him.
5) If the trial court orders an affidavit, have the attorney file the affidavit with the district clerk’s office; don’t attach it to the State’s pleadings.
6) If the filed affidavit does not sufficiently address the issue, request an order for an amended or supplemental affidavit.
7) If the attorney refuses to file an affidavit, request a Show Cause Order.
8) Remember that a hearing is an option even after getting an affidavit.
9) If it is apparent that a hearing will be held, regardless of the contents of any affidavit, consider not requesting an affidavit.
10) Even if you have requested the affidavit and it has been filed, do not cite to an affidavit that is not credible.
Editor’s note: For information on this subject and more, check out TDCAA’s book, Writs by Andréa Jacobs, Assistant Criminal District Attorney in Tarrant County. It includes everything prosecutors need to know about answering writs of habeas corpus filed under Code of Criminal Procedure Arts. 11.07 and 11.072, plus DNA testing petitions filed under Chapter 64 of the Code of Criminal Procedure. Writs includes checklists, sample forms, and tips and is a must-have for anyone in a prosecutor’s office who handles writs of habeas corpus. Buy it at www.tdcaa.com/publication or by calling 512/474-2436.
1 The CCA noticed that some cases were languishing in the trial court for far too long. As a result, the Court amended the Texas Rules of Appellate Procedure and limited the trial court’s jurisdiction to 180 days. After that, the writ must be forwarded to the CCA unless an extension is granted to the trial court. See Tex. R. App. P. 73.5.
2 More and more courts are compensating defense attorneys for the time spent obeying the trial court’s orders for affidavits.
3 Skinner v. State, 956 S.W.2d 532, 543 (Tex. Crim. App. 1997).
4 Another possible reason for a remand may be that the writ transcript is forwarded to the CCA without any input from the State or trial court.
5 I would suggest this only if the record is that of a plea and there is some indication that the record would address the issue. I would rather request an affidavit from counsel than have my office spend money on a record for a fishing expedition.
6 His complaint to the trial court was that he was scared into pleading guilty because he was facing trial on a continuous sexual abuse case where he faced a 25-year-minimum, day-for-day sentence if convicted. Counsel had advised him that he did not stand a chance at trial.
7 Strickland v. Washington, 466 U.S. 668, 697, 104 S.Ct. 2052, 2069, 80 L.Ed.2d 674 (1984) (emphasis added).