If client is in custody while awaiting competency restoration, counsel should communicate with the Sheriff’s office regarding when the client will be transported to the hospital or treatment program.
To the extent it is possible to communicate with client, counsel should keep the client informed of when the client will be going to the hospital.
Counsel should provide contact information to the social workers at the hospital and stay in touch with the social worker regarding the client’s status.
When the client is returned from the hospital after competency restoration treatment, counsel should request that the client’s case be placed back on the docket as quickly as possible to prevent the client from decompensating upon return to the jail, but before the case can be resolved.
Counsel should be familiar with and understand the law governing the prosecution’s power to require a client to provide non-testimonial evidence, such as handwriting exemplars and physical specimens, the circumstances in which a client may refuse to do so, the extent to which counsel may participate in the proceedings, and the record of the proceedings required to be maintained.
Counsel has a duty to conduct, or secure the resources to conduct, an independent case review and investigation as promptly as possible. Counsel should, regardless of the client’s wish to admit guilt, determine whether the charges and disposition are factually and legally correct and inform the client of potential defenses to the charges. Counsel should explore all avenues leading to facts relevant both to the merits and to the penalty in the event of conviction. In no case should counsel delay a punishment phase investigation based on the belief that the client will be found not guilty or that the charges against the client will otherwise be dismissed.
Sources of review and investigative information may include the following:
The arrest warrant, accusation, complaint, and information or indictment documents, along with any supporting documents used to establish probable cause, should be obtained and examined to determine the specific charges that have been brought against the client. The relevant statutes and precedents should be examined to identify:
The elements of the offense with which the client is charged;
The defenses, ordinary and affirmative, that may be available, as well as the
proper manner and timeline for asserting any available defenses;
Any lesser included offenses that may be available;
Any defects in the charging documents, constitutional or otherwise, such as
statute of limitations or double jeopardy; and