EX PARTE APPLICATION FOR ORDER RE: APPOINTMENT OF INVESTIGATOR
CAROLYN K. DELANEY, Magistrate Judge.
Summary of Issue
The team representing Mr. Corbett has encountered significant difficulty in obtaining certain records in this matter despite the fact the defense has provided entities with releases signed by Mr. Corbett. In order to facilitate the collection of records Mr. Corbett respectfully requests this Court issue an order evidencing that Rebecca Dobkin and Frank Huntington are licensed private investigators appointed by the Court to investigate Mr. Corbett's case.
Procedural History
A criminal complaint naming Jason Corbett along with others was filed under seal in this court on May 21, 2019. On June 14, 2019 an indictment against him and others was unsealed. Based on the accusations in the indictment Mr. Corbett is potentially eligible for the death penalty. The undersigned counsel was appointed to represent Jason Corbett in July 2019. Shortly thereafter Richard Novak was appointed as Learned Counsel for Mr. Corbett. These appointments are reflected on the docket.
Factual Background
After being appointed on this case Mr. Novak and Ms. Daly assembled a team to represent Mr. Corbett. Among the members of that team are licensed private investigators Rebecca Dobkin and Frank Huntington. The investigators are not listed on the docket.
Because Mr. Corbett is potentially facing the death penalty the team representing Mr. Corbett is charged with developing a personal history in connection with their mitigation investigation. Collection of a wide-range of documents is a core responsibility of counsel in a death case and is a central aspect of the mitigation investigation. The facts and circumstances of Jason Corbett's life are all core mitigation information.
The Commentary to the ABA Guidelines for the Appointment and Performance of Defense Counsel in Death Penalty Cases ("ABA Guidelines") states,
Counsel should use all appropriate avenues including signed releases, subpoenas, court orders, and requests or litigation pursuant to applicable open records statutes to obtain all potentially relevant information pertaining to the client, his or her siblings and parents, including but not limited to:
(a) School records;
(b) Social service and welfare records;
(c) Juvenile dependency or family court records;
(d) Medical records;
(e) Military records;
(f) Employment records;
(g) Criminal and correctional records;
(h) Family birth, marriage and death records;
(i) Alcohol and drug abuse assessment or treatment records, and
(j) INS records.
ABA Guidelines, Guideline 10.7, Comment (emphasis added). The "Supplementary Guidelines For The Mitigation Function of Defense Teams In Death Penalty Cases", 36 Hoflr 677, 2008. Guideline 10.11(B) reads:
The defense team must conduct an ongoing, exhaustive and independent investigation of every aspect of the client's character, history, record and any circumstances of the offense, or other factors, which may provide a basis for a sentence less than death. The investigation into a client's life history must survey a broad set of sources and includes, but is not limited to: medical history; complete prenatal, pediatric and adult health information; exposure to harmful substances in utero and in the environment; substance abuse history; mental health history; history of maltreatment and neglect; trauma history; educational history; employment and training history; military experience; multi-generational family history, genetic disorders and vulnerabilities, as well as multi-generational patterns of behavior; prior adult and juvenile correctional experience; religious, gender, sexual orientation, ethnic, racial, cultural and community influences; socio-economic, historical, and political factors.
At every stage of the proceedings, counsel has a duty to investigate the case thoroughly. See Powell v. Alabama, 287 U.S. 45, 57 (1932) (describing "thorough-going investigation as vitally important"); ABA Standards for Criminal Justice: Defense Function Standard 4-4.1, 4-6.1, in ABA Standards for Criminal Justice: Prosecution Function and Defense Function (3d ed. 1993); Nat'l Legal Aid & Defender Ass'n, Performance Guidelines for Criminal Defense Representation, Guideline 4.1 (1997). Numerous courts have found counsel ineffective when they have failed to conduct an adequate investigation for sentencing. See, e.g. Wiggins v. Smith, 539 U.S. 510 (2003) (counsel ineffective because, although they obtained some mitigation evidence, they failed to investigate the client's social history or explore the numerous areas of mitigation listed in the ABA Guidelines), Williams v. Taylor, 529 U.S. 362 (2000) (counsel ineffective for failing to uncover and present evidence of defendant's "nightmarish childhood," borderline mental retardation and good conduct in prison); Douglas v. Woodford, 316 F.3d 1079 (9th Cir. 2003) (although counsel did uncover and present some mitigating evidence, his investigation "was constitutionally inadequate" for failing to dig deeply enough into client's social, medical and psychological background; nor did counsel adequately prepare the penalty phase witnesses in order to present the material that he did have "to the jury in a sufficiently detailed and sympathetic manner").
Consistent with their legal and ethical obligations the defense team has begun, or at least attempted to begin, collecting relevant background records. Among the records the defense seeks to collect are Mr. Corbett's school records. In order to obtain those records Mr. Corbett executed releases directing his former school to provide these records. The school refuses. The school maintains they will only provide the records to Mr. Corbett if he personally appears at the school and requests these documents or the defense team provides proof that the investigator attempting to obtain the records is appointed by the court on behalf of Mr. Corbett.1
Request
Attached to this Ex Parte Application are two proposed orders; one for Ms. Dobkin and another for Mr. Huntington. In sum, each order states that the named investigator is Court appointed to assist in Mr. Corbett's defense. Mr. Corbett requests this Court sign these orders so the private investigators working on the Corbett defense team can in turn show these order to Mr. Corbett's former school, as well as potentially other agencies, in order to obtain records for which the defense has releases executed by Mr. Corbett.
ORDER
This order is evidence that Rebecca Dobkin, a private investigator licensed to practice in California, is and has been appointed to assist counsel in their representation of Jason Corbett in United States District Court, in and for the Eastern District of California, Case No. 2:19-CR-00107-KJM.
This order is evidence that Frank Huntington, a private investigator licensed to practice in California, is and has been appointed to assist counsel in their representation of Jason Corbett in United States District Court, in and for the Eastern District of California Case No. 2:19-CR-00107-KJM.
