Jorge Torrez Defense Scheduling Memo

8/2/2019 Jorge Torrez Defense Scheduling Memo

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UNITED STATES DISTRICT COURT FOR THE

EASTERN DISTRICT OF VIRGINIA

Alexandria Division

UNITED STATES OF AMERICA ) REDACTED VERSION

) Criminal No. 1:11-cr-115v. )

) The Hon. Liam OGrady

JORGE AVILA TORREZ, )

) Hearing: March 1, 2012

Defendant. )

)

DEFENDANTS MEMORANDUM ON FACTORS RELEVANT TO SCHEDULING FOR

PURPOSES OF THE STATUS HEARING ON MARCH 1, 2012

In light of the status hearing scheduled by the Court for March 1, 2012, the Defendant,

Jorge Avila Torrez, by counsel, hereby provides a memorandum containing factors relevant to

the Courts scheduling in this case. Because of a number of unanticipated circumstances coupled

with the need for extensive investigation outside of this District in order to complete the

mitigation investigation in this case, the defense respectfully requests that the Court set a trial

date for April 2013. In the alternative, in light of the possibility that one or more conflicting

matters may be resolved in the next eight weeks, we request that the Court continue the status

hearing until on or about May 4, 2012 and delay the setting of a trial date at this time.

This Memorandum has been filed under seal and ex parte to protect confidential work

product that has been performed or will be conducted by the defense. A redacted Memorandum

has been filed and served upon opposing counsel.

Case 1:11-cr-00115-LO Document 39 Filed 02/28/12 Page 1 of 9 PageID# 115


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I. UNANTICIPATED CIRCUMSTANCES AND PREVIOUSLY

SCHEDULED CONFLICTS MAKE IT EXTREMELY DIFFICULT IF

NOT IMPOSSIBLE FOR THE DEFENSE TO BE PREPARED FOR TRIAL

BEFORE APRIL 2013

Defense counsel wish to advise the Court of the following circumstances that make

scheduling of the trial in this case before April 2013 extremely onerous for the defense.

Specifically, defense counsel Brian Mizer, Geremy Kamens, and learned counsel Joseph

McCarthy all have matters that complicate scheduling in this case: Mr. Mizer must take a leave

of absence for six months beginning immediately; Mr. Kamens has a trial involving a charge of

first degree murder beginning on September 10, 2012, and Mr. McCarthy has an eight-week

federal trial scheduled to begin January 14, 2013.

As an initial matter, defense counsel Brian Mizer has been unexpectedly recalled to active

duty in the United States Navy for a period of six months beginning on March 5, 2012. This

recall to active duty became official on or about February 22, 2012, and Mr. Mizer promptly

informed the Office of the Federal Public Defender that he had no choice but to take a leave of

absence from his work for the Office. As a member of the active reserves, Mr. Mizer has no

choice but to accept his temporary recall to active duty, and the Office of the Federal Public

Defender has no choice in this matter.1

Mr. Mizer has been intimately involved in this case since it was assigned to the Office of

the Federal Public Defender. The defendant is alleged to have committed the charged conduct on

The request for the recall of Mr. Mizer to active duty was made by the Judge Advocate1

General himself. Mr. Mizer is one of only three lawyers on active duty or active reserve qualified

to be assigned to an appeal of a capital murder conviction, and the other two are at Guantanamo Bay

working on a capital military commission prosecution against detainees involved in the attacks on

September 11, 2001.

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a military base while he was on active duty, and the decedent was a Navy corpsman who lived on

base. Mr. Mizer is the only member of the defense team with prior military experience, and he

has been responsible for work that cannot be easily reassigned to another lawyer.

In addition, Mr. Kamens is the lead defense counsel in the case ofUnited States v. Amy

Hunter, Case No. 1:12-CR-62 (E.D. Va.), in which an indictment charging first degree murder

was issued on February 14, 2012. At the arraignment, the Court denied defense counsels request

that no trial date be set pending the governments authorization decision, and scheduled trial for

September 10, 2012. A status hearing is scheduled for May 18, 2012, to permit the government

time to determine whether to authorize pursuit of the death penalty. If the government sought to

pursue the death penalty in that case, it would be necessary to continue the September 10, 2012,

trial date. However, it does not appear likely that the government will seek to authorize the death

penalty in that case.

Finally, Mr. McCarthy, who is learned counsel in this case, is counsel for a defendant

facing charges involving complex racketeering allegations in federal court in Baltimore,

Maryland. The case involves a large number of co-defendants, and is scheduled for trial

beginning on January 14, 2013. Because of the number of co-defendants and the nature of the

charges, trial is expected to last at least eight weeks.

If the Court declines to set this matter for trial in April 2013, we respectfully request that

the Court continue this status hearing until at least May 4, 2012. Such a delay would permit all

three defense counsel to potentially resolve matters that currently make scheduling a trial in this

case in the Fall of 2012 or early 2013 problematic.

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II. THE GOVERNMENTS DECISION TO SEEK THE DEATH PENALTY

INCREASES DEFENSE COUNSELS RESPONSIBILITIES BY AN

ORDER OF MAGNITUDEAND REQUIRES EXTENSIVE ADDITIONAL

MITIGATIONINVESTIGATION

On February 9, 2012, the defense was informed that Attorney General Eric Holder has

authorized pursuit of the death penalty in this case. This decision greatly expands the amount of

time, money and resources that will be required to prepare for the mitigation phase of this trial.

While the defense has already invested significant resources into the investigation and

preparation of this case, the governments decision to seek the death penalty in this case

transforms both the obligations of defense counsel in order to provide effective assistance and the

resources that must be devoted to this case now that the authorization decision has been made. In

other words, this case is in an entirely different posture now, and the law requires much more to

be accomplished by the defense counsel before a trial may be conducted with the effective

assistance of Mr. Torrezs legal representatives.

The Supreme Court has held that counsel are ineffective if they neglect to fully and

robustly develop the mitigation case by thorough and dogged investigation of the defendants

background. Rompilla v. Beard, 545 U.S. 374 (2005); Wiggins v. Smith, 539 U.S. 510 (2003).

The failings in these cases stemmed not from an utter failure to inquire, but from the failure of

the defense counsel to fully investigate unexplored possibilities that may reasonably lead to

information useful during the penalty phase of the trial. Rompilla, 545 U.S. at 382. InRompilla,

for example, the Court found that the defense counsel provided ineffective assistance by failing

to seek out historical source[s] that might have shed light on the defendants mental health

even after consultation with three mental health witnesses, and by failing to review files related

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to the defendants prior convictions. Id. at 385-88. Likewise, in Wiggins the Court noted that

defense counsel in death penalty cases are required to investigate all reasonably available

mitigating evidence and evidence to rebut any aggravating evidence that may be introduced by

the prosecutor. 539 U.S. at 524.

This effort takes time. Moreover, the investigation of the defendants background, as it

relates to the penalty phase, in large part has been limited until the Attorney General made the

decision whether to authorize the pursuit of the death penalty. This reasonable delay is

necessarily informed by the practical consideration of the cost of the undertaking and the desire

to avoid the unnecessary expenditure of funds until the government provides notice that it intends

to seek the death penalty. Now that the Attorney General has made this decision, steps2

necessary for the effective representation of the defendant are being implemented.

A. REDACTED

REDACTED

B. REDACTED

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C. REDACTED

REDACTED

The Fourth Circuit recently has explored a policy of capping capital counsel fees at a2

presumptively reasonable level of $100,000. This effort illustrates the Fourth Circuits concern with

the enormous costs associated with the defense of a capital case.

In Mr. McCarthys experience as a CJA panel member, courts have refused even to authorize

expenditures on the mitigation case, such as trips to the defendants home country, even for the

mitigation expert, unless and until the Attorney General authorizes the case for the death penalty.

Given the recent limitations imposed upon expenditures by federal agencies, the Federal

Defenders Office is no less mindful of the costs associated with these cases and reasonably has

sought to put off expenditures until after the governments authorization decision is made.

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III. REDACTED

1. The Discovery is Voluminous

The discovery made available to the defense is contained in more than eighty CD-Roms

and includes tens of thousands of pages of materials, photographs and items of physical evidence.

This discovery spans three separate, serious and complicated investigations, including:

(1) the complete investigation of the charged offense,

(2) an investigation in Arlington, Virginia, of two separate offense dates in February

2010, for which the defendant was convicted on seventeen counts including the use of a

firearm in the commission of a felony, abduction with the intent to defile, rape and other

violent offenses for which the defendant was sentenced to five life terms and 168 years

confinement within the Virginia Department of Corrections, and

(3) an investigation focusing on the defendant as the prime suspect involving the deaths

of two young girls in Zion, Illinois, seven years ago that led to the arrest and subsequent

release of Mr. Jerry Hobbs, the father of one of the two children, who had been held for

five years in pretrial detention on capital charges for these murders.

2. REDACTED

A. REDACTED

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B. REDACTED

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C. REDACTED

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D. REDACTED

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E. REDACTED

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REDACTED

3. REDACTED

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4. REDACTED

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IV. CONCLUSION

For the above reasons, the defense respectfully asks that the Court set a trial date in this

case for April 2013. In the alternative, the defense respectfully requests that the Court continue

this status hearing until on or about May 4, 2012, to allow defense counsel to potentially resolve

scheduling issues in other cases.

Respectfully submitted,

Jorge Avila Torrez

By Counsel

/s/

Geremy C. Kamens

Virginia Bar No. 41596First Assistant Federal Public Defender

Attorney for Mr. Torrez

1650 King St., Suite 500

Alexandria, Virginia 22314

Tel. (703) 600-0800

Fax (703) 600-0880

[email protected]

/s/

Brian Mizer

Virginia Bar No. 79384

Assistant Federal Public Defender




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Tel. (703) 600-0800

Fax (703) 600-0880

[email protected]

/s/Joseph J. McCarthy

Virginia Bar. No. 19006

Delaney, McCarthy & Colton, P.C.


510 King Street, Suite 400


Telephone: (703) 549-9701

Facsimile: (703) 836-4285

E-mail: [email protected]

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CERTIFICATE OF SERVICE

I hereby certify that on the 28th day of February, 2012, I will electronically file the foregoing

with the Clerk of Court using the CM/ECF system, which will then send a notification of such filing

(NEF) to the following:

Mr. Michael E. Rich

Assistant United States Attorney

2100 Jamieson Ave.

Alexandria, Virginia, 22314

(703) 299-3700

[email protected]

/s/

Geremy C. Kamens

Virginia Bar No. 41596

Assistant Federal Public Defender




Tel. (703) 600-0800

Fax (703) 600-0880

[email protected]

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Jorge Torrez Defense Scheduling Memo