Pretrial and Post-Conviction Investigation

A Comparison for Clients, Families, and Counsel

Before a verdict we build the record the defense will use at motions, in plea negotiations, and at trial. After a conviction becomes final and the case moves into state or federal habeas review, we investigate the offense again. We also investigate the trial itself, including the work trial counsel did and did not do.

The two stages share techniques. They differ in legal posture, in the tools available, in the deadlines that govern them, and in what a court is permitted to consider. Those differences decide what an attorney or a family should expect from the investigator they hire.

Purpose and posture

Pretrial fact investigation supports the defense team between arrest and verdict. We work at the direction of defense counsel and as part of the trial team. The goal is the factual record the defense will rely on at motions, in plea negotiations, and at trial.

At this stage the presumption of innocence still applies and the prosecution carries the burden of proof. Defense investigation looks forward. It builds toward acquittal, dismissal, suppression of evidence, a favorable plea, or sentencing mitigation if the case resolves short of trial.

We prioritize tasks by what is most likely to help the defense, what is time-sensitive, and what supports the issues counsel is developing. Priorities are revisited with the directing attorney as the case develops and as new facts come in.

Scope of work

Not every case calls for all of this work. The charges, the evidence, the defense theory, and counsel's direction decide what is done and in what order. Scope, priorities, and reporting cadence are set with the directing attorney at the outset and revisited as the case develops.

Case analysis and theory development

• Reviewing the offense report and investigating the facts stated in it
• Reviewing all charging documents, affidavits, and grand jury materials
• Reviewing evidence and related testing
• Identifying weaknesses in the State's theory of the crime
• Building a master timeline of the offense and the police investigation
• Cataloguing inconsistencies among officer reports, supplemental reports, witness statements, and physical evidence
• Identifying co-defendants, uncharged participants, and potential alternate suspects
• Developing a plan to gather evidence supporting the defense

We read the offense report, the charging documents, and any available grand jury materials against the discovery the prosecution produces. Police reports, supplemental reports, witness statements, lab reports, search warrants, and digital evidence are read against each other. We look for inconsistencies among reports, gaps in the chain of custody, and timeline problems. A master timeline is built and updated as new facts arrive. We then work with counsel on what additional facts need developing, where the State's theory is weak, and whether the case presents alternate suspect issues that warrant separate investigation.

Witness investigation

• Identifying State witnesses, defense witnesses, and witnesses neither side interviewed
• Locating witnesses through field work and database research
• Conducting witness interviews
• Documenting interviews in memoranda or in recorded statements with consent
• Conducting background checks of witnesses and of the complainant, covering criminal history, civil litigation, prior testimony, cooperation history with law enforcement, and pending charges relevant to motive
• Investigating extraneous offenses, including locating and interviewing witnesses to noticed prior conduct
• Obtaining the underlying records of prior incidents
• Identifying weaknesses in the State's account of the prior offense

We locate witnesses identified in discovery along with witnesses the State never interviewed. Interviews are conducted in person where possible, and statements are written up in memoranda or, with the witness's consent, recorded. Background checks are run on witnesses and on the complainant, covering criminal history, civil litigation, prior testimony, cooperation history with law enforcement, and open matters relevant to motive. Social media accounts are reviewed and preserved where appropriate. The work targets material affecting credibility, bias, or motive to fabricate.

Where the State has noticed extraneous offenses, or where prior conduct may be raised at trial or sentencing, we develop the facts surrounding those incidents. That can mean locating and interviewing witnesses to the prior conduct, obtaining the underlying records, and identifying weaknesses in the State's account of the prior offense.

Scene and physical evidence

• Visiting the scene
• Photographing the scene and the surrounding area
• Documenting lighting, sightlines, weather conditions, and other environmental factors relevant to the State's theory
• Returning to the scene at the same time of day where identification or visibility is at issue
• Identifying problems with the State's account of how the offense occurred at the location as described
• Reviewing physical evidence and the testing performed on it
• Reviewing chain of custody documentation
• Flagging issues for review by a scene reconstruction expert or another specialist counsel retains

We visit the location, photograph it, and observe it with the State's theory of the offense in mind. Lighting, sightlines, weather conditions, and other environmental factors are documented. Where identification or visibility is at issue, we return at the same time of day and under similar conditions. The purpose is to identify problems with the State's account of how the offense occurred at the location as described. Scene reconstruction, including measurements and similar technical work, belongs to the reconstruction experts counsel retains. We flag the issues that warrant that kind of review and gather the records and observations the expert will need. Physical evidence and the testing performed on it are reviewed, and chain of custody documentation is checked for gaps and irregularities.

Digital evidence and surveillance

• Identifying surveillance cameras at and around the scene, including private and municipal sources
• Issuing preservation requests and preparing subpoenas before retention windows close
• Reviewing body-worn camera, dash camera, and in-custody video
• Reviewing jail calls, jail visit logs, and jail mail records
• Locating and preserving social media accounts of the client, the witnesses, and the complainant
• Reviewing cellular phone records, call detail records, and historical cell site location information, with attention to the warrant requirement Carpenter v. United States established for extended historical cell site records
• Confirming the authority under which any such records were acquired
• Working with counsel on the records needed to review phones, computers, and other devices subjected to forensic extraction
• Identifying location data from rideshare, transit, toll, license plate reader, and similar third-party sources

We identify surveillance cameras at and around the scene. That covers private cameras on adjacent businesses and residences along with municipal and law enforcement cameras. Preservation requests go out and subpoenas are prepared before retention windows close. Body-worn camera, dash camera, and in-custody video are reviewed in full instead of in the segments the State selects. Jail calls, jail visit logs, and jail mail records are reviewed. Social media accounts of the client, the witnesses, and the complainant are located and preserved.

Cellular phone records, call detail records, and historical cell site location information are reviewed where relevant. We work with counsel on the authority for acquisition, given the warrant requirement Carpenter v. United States established for extended historical cell site records. Where law enforcement has performed forensic extractions of phones, computers, or other devices, we work with counsel on the records and underlying data a qualified analyst will need. The same applies where the defense needs an extraction of its own. Third-party location data from rideshare, transit, toll, and license plate reader sources is identified for counsel's consideration.

Suppression motion support

• Developing facts on Fourth Amendment search and seizure issues, including the basis for the stop, the scope of the search, consent, and warrant adequacy
• Investigating the circumstances of any custodial interrogation, including timing, conditions, the giving and waiver of Miranda warnings, and the client's mental state
• Documenting identification procedures, including photo arrays, lineups, and showups, and the instructions given to witnesses
• Locating and interviewing officers, civilian witnesses, and others present during searches, arrests, interrogations, and identifications
• Obtaining the underlying records of the officers involved, including training records and discipline files relevant to the credibility of the search or seizure account

Suppression motions succeed or fail on the facts behind them, and developing those facts takes up a substantial part of pretrial work. Fourth Amendment issues call for the basis for the stop, the scope of the search, the question of consent, and the adequacy of any warrant. For statements, we develop the timing and conditions of any custodial interrogation, the giving and waiver of Miranda warnings, the length of questioning, and the client's mental and physical state. For identification procedures, we develop the composition of any photo array or lineup, the instructions given to witnesses, and the timing of the procedure. We also develop any prior contact between the witness and the suspect or the suspect's image.

Officers, civilian witnesses, and others present during searches, arrests, interrogations, and identifications are located and interviewed. Counsel files and argues the motions. We develop the facts underneath them and prepare and serve the subpoenas counsel directs. Underlying records of the officers involved are obtained where relevant, including training records and discipline files that affect the officer's account.

Records collection and compulsory process

• Identifying records the defense needs instead of relying on what the State produces under the governing discovery statute
• Preparing and serving subpoenas at counsel's direction
• Issuing preservation letters to third parties
• Obtaining law enforcement records through public information requests where appropriate, including 911 audio, dispatch logs, CAD reports, and patrol logs
• Obtaining hospital, mental health, school, employment, military, child welfare, and corrections records as relevant
• Obtaining records concerning the complainant and State witnesses where counsel authorizes it
• Overseeing production from agencies and third parties, including follow-up on outstanding requests
• Tracking what has been requested, what has been produced, and what remains outstanding
• Providing records to counsel as they arrive, with the law firm keeping the organized case file

Records collection proceeds in parallel with the rest of the investigation and is not deferred to whatever the State elects to produce under its discovery obligations. Subpoenas are prepared and served at counsel's direction. Preservation letters go to third parties early, before records fall outside ordinary retention windows. Public information requests are used where appropriate for 911 audio, dispatch logs, CAD reports, patrol logs, and similar law enforcement records. Hospital, mental health, school, employment, military, child welfare, and corrections records are obtained as the case requires. Records concerning the complainant and State witnesses are pursued where counsel authorizes it and legal process supports it.

We oversee production from agencies and third parties, follow up on outstanding requests, and track what has been requested, what has been produced, and what remains outstanding. Records are provided to counsel as they arrive. The law firm keeps the organized case file.

Support for defense experts

• Identifying areas where expert review may be needed and flagging them for counsel
• Gathering and organizing the records, reports, and physical evidence the experts counsel retains will need
• Locating witnesses and obtaining records the experts identify as relevant to their analysis

Counsel selects and retains the experts. We flag the areas where expert review may be needed. We gather and organize the records, reports, and physical evidence the experts will need, and we locate and interview the witnesses the experts identify.

Support for mitigation

• Working with the mitigation specialist or mitigation investigator retained on the case
• Providing fact investigation support to mitigation work where requested, including locating witnesses, obtaining records, and developing factual context about the offense and the client's circumstances
• Coordinating with mitigation on overlapping witness interviews to avoid duplication and to keep each track of work intact

Mitigation investigation is a separate discipline conducted by mitigation specialists and mitigation investigators retained for that purpose. Liberty Investigations does not perform that role. We work alongside the mitigation team and provide fact investigation support where requested, including locating witnesses, obtaining records, and developing factual context about the offense and the client's circumstances. Where witness interviews overlap between the fact and mitigation tracks, the investigators coordinate to avoid duplication and to keep each track of work intact.

Trial preparation

• Preparing materials for cross-examination of State witnesses, including law enforcement
• Identifying and obtaining prior testimony of State witnesses for impeachment
• Assisting with exhibit preparation, including demonstrative exhibits, scene diagrams, and timelines
• Conducting jury research and venue research where authorized

As trial approaches we support counsel's preparation. That work covers materials for cross-examination of State witnesses, prior testimony of State witnesses for impeachment, and exhibit preparation including demonstrative exhibits, scene diagrams, and timelines. Jury research and venue research are conducted where authorized.

Reporting

• Providing detailed reports of interviews and background checks
• Following the document referencing convention the directing attorney uses, including exhibit labels, Bates numbering, or another system as directed
• Maintaining the file as attorney work product

We provide detailed reports of interviews and background checks. Reports are prepared as attorney work product and organized for motions practice and trial preparation. Formatting follows the directing attorney's preferences, including exhibit labels, Bates numbering, or another reference convention as directed.

Time horizon

Pretrial investigation proceeds under the schedule the trial court sets. Deadlines for motions, expert disclosures, and trial preparation drive the pace, and the work is intensive and time-compressed. Witnesses are still findable at this stage, evidence is still recoverable, and memories are still relatively fresh.

Post-conviction work follows a sequence, and each step limits the one after it. Families often ask why a claim cannot simply be raised whenever the evidence supporting it surfaces. Counsel decides how these rules apply in a given case, and none of this is legal advice.

Direct appeal

The direct appeal comes first. It is decided on the trial record alone. No new evidence, no new witnesses, and no new investigation enter the case once the trial court loses plenary power. A motion for new trial can add to the record before that point. In Texas, a death sentence is appealed automatically to the Court of Criminal Appeals. Other felony convictions go to an intermediate court of appeals, with discretionary review available afterward in the Court of Criminal Appeals.

A claim that depends on facts outside the trial record cannot be won on direct appeal. Ineffective assistance of counsel is the common example, because the record rarely says what trial counsel investigated, what counsel knew, or why counsel made a given choice. Those claims wait for habeas.

State habeas

State habeas is where new evidence enters the case for the first time. In Texas, non-capital felony applications are filed in the convicting court under Article 11.07 of the Code of Criminal Procedure and decided by the Court of Criminal Appeals. Capital applications are filed under Article 11.071 and proceed alongside the direct appeal instead of after it.

The initial capital application is due the later of 180 days after habeas counsel is appointed or 45 days after the State files its direct appeal brief. The convicting court may grant one 90-day extension for good cause. Article 11.07 sets no comparable deadline for non-capital applications. Texas courts apply laches on a totality of the circumstances, and the showing the State must make shrinks as the delay grows, particularly beyond five years after direct appeal concludes.

The convicting court appoints the Office of Capital and Forensic Writs to represent an indigent capital applicant unless that office declines or is disqualified. Qualified private counsel is appointed when the office cannot take the case.

Federal habeas

A person in state custody may petition a federal district court under 28 U.S.C. Section 2254 once state remedies are exhausted. Federal prisoners use Section 2255. The Antiterrorism and Effective Death Penalty Act of 1996 governs both, and it constrains federal review heavily.

Section 2244(d) gives a one-year limitation period, most often measured from the date the conviction became final on direct review. A properly filed state application tolls that year while it is pending. Section 2254(d) limits relief to state court decisions contrary to clearly established federal law, or applying it unreasonably, or resting on an unreasonable determination of the facts.

Appeal from a federal district court requires a certificate of appealability. In Texas cases the Fifth Circuit hears the appeal. Review after that is by petition for certiorari to the Supreme Court.

Successor applications

A second application faces gatekeeping standards far stricter than the first. Under Article 11.071 Section 5, a subsequent capital application is dismissed unless the factual or legal basis of the claim was unavailable when the prior application was filed. It also survives on a showing, by a preponderance of the evidence, that no rational juror could have found the applicant guilty but for a constitutional violation. A third route requires clear and convincing evidence that no rational juror would have answered a punishment special issue in the State's favor but for such a violation. Article 11.07 Section 4 applies the first two of those standards to non-capital cases.

Federal law is no easier. Section 2244(b) requires authorization from the court of appeals before a district court may consider a second or successive petition. Authorization turns on a new retroactive rule of constitutional law, or on a factual predicate that could not have been discovered earlier through due diligence. The second route also requires clear and convincing evidence that no reasonable factfinder would have found the applicant guilty but for constitutional error. A filing counts as second or successive once the district court has entered judgment on the first petition, even while an appeal of that petition remains pending. The Supreme Court settled that point in Rivers v. Guerrero, decided June 12, 2025.

Clemency

Executive clemency sits outside the courts. A pardon or a commutation is a matter of grace rather than a legal remedy. In Texas it requires a recommendation from the Board of Pardons and Paroles before the Governor may act. The Governor may also grant one reprieve of up to 30 days in a capital case without that recommendation. Investigation supporting a clemency petition draws on much of the same material as habeas work, presented for a different audience.

The state habeas application is, in most cases, the only opportunity for full factual development. Everything that follows is reviewed against the record made there.

Federal review and the state record

Federal review under Section 2254(d)(1) is limited to the record that was before the state court. The Supreme Court so held in Cullen v. Pinholster, decided April 4, 2011. Evidence developed later in federal court cannot be considered in deciding whether the state court ruling was unreasonable.

A federal habeas court also may not hold an evidentiary hearing, or consider evidence beyond the state court record, based on the ineffective assistance of state post-conviction counsel. Shinn v. Ramirez, decided May 23, 2022, is the decision that closed that route. Two earlier decisions, Martinez v. Ryan and Trevino v. Thaler, still permit a federal court to excuse the procedural default of a trial ineffectiveness claim in some circumstances. Trevino is the Texas case extending Martinez. After Shinn, the petitioner generally cannot introduce the evidence needed to prove such a claim if it was never developed in state court.

Refiling is not an answer either. Once the federal district court enters judgment, the next petition is second or successive and requires authorization that is rarely granted. The Supreme Court settled that point in Rivers v. Guerrero, decided June 12, 2025.

An undeveloped claim is usually an unrecoverable claim. A witness who was never located becomes a permanent gap. So do a record that was never requested, an expert who was never consulted, and a trial counsel file that was never reviewed page by page.

Consequences for the investigation

Claim identification is approached broadly at the start. We work with counsel so that potential claims are identified and assessed, including claims that look weak on first review and grow stronger as the investigation develops. The trial record, the appellate record, trial counsel's file, and the police and prosecution files are reviewed for every issue that could support relief.

Broad claim identification regularly surfaces issues that were invisible at the outset. A witness reinterview can produce a Brady issue nobody had seen. Reading trial counsel's file page by page can surface an ineffective assistance claim that was not in the original assessment. Juror background checks have produced evidence of bias and of undisclosed criminal history, and records collection can turn up a pattern of officer misconduct affecting several parts of the case.

Witness work, records collection, background investigation, scene work, and review of trial counsel's file proceed in parallel, and each track can produce facts supporting more than one claim. We prioritize by what is most likely to support the strongest claims and by what is time-sensitive given retention windows, witness availability, and the deadlines governing the case.

The same reasoning explains why thorough records collection during the pretrial phase matters so much. Records that a subpoena could have compelled before trial often cannot be obtained at all afterward, and the failure to obtain them can itself become a subject of post-conviction investigation.

Purpose and posture

Post-conviction fact investigation begins as the case moves into collateral review, which in capital cases proceeds alongside the direct appeal. We work at the direction of post-conviction counsel, under the state post-conviction statutes or the federal habeas provisions.

The presumption of innocence is no longer available and the conviction is presumed valid. Our task is the factual record supporting specific legal claims that can overturn the conviction if proven. Common claims include ineffective assistance of trial or appellate counsel, prosecutorial misconduct, and suppression of exculpatory evidence under Brady v. Maryland. Others include false or misleading testimony under Napue v. Illinois, newly discovered evidence, actual innocence, juror misconduct, and judicial bias. Constitutional violations that were never raised or never fully developed at trial or on appeal also belong here.

The tools available to us also change. Subpoena power and trial-level compulsory process are not available to us as of right at this stage. The convicting court can order affidavits, depositions, interrogatories, additional forensic testing, and hearings once it designates issues for resolution. Records that a subpoena would have produced before trial otherwise have to be sought by other means.

The volume of material, the age of the case, and the constraints on records and witnesses all shape the order of the work. We prioritize by what is most likely to support the legal claims under development and by what is time-sensitive. Priorities are revisited with the directing attorney as the case develops.

Scope of work

The conviction, the trial record, the appellate posture, the claims under development, and counsel's direction decide which of this work a case requires.

Reconstruction of the underlying case

• Reviewing the offense report and identifying areas of investigation as though the case were pretrial
• Reviewing the defense investigation performed before trial to determine whether proper investigation was done
• Identifying areas of investigation never pursued before trial
• Reviewing witness statements to police, to prior investigators, and at trial
• Locating witnesses and reinterviewing them about the offense and about their interactions with police, prosecutors, defense attorneys, and prior investigators
• Conducting background investigations never pursued before trial
• Researching new evidence and developing alternate suspects
• Reviewing other cases on appeal for information useful to the defense team
• Investigating recantations, including the original statement, the circumstances of the recantation, and available corroboration
• Investigating jailhouse informants and other cooperating witnesses, including cooperation history across cases, benefits received, and patterns of testimony
• Identifying and investigating forensic science issues, including disciplines called into question or revised since trial
• Obtaining and reviewing the client's prison records as relevant
• Investigating issues under Padilla v. Kentucky and related collateral consequence claims where applicable

Ineffective assistance of counsel

• Reviewing trial counsel's file, including billing records, investigator notes, expert correspondence, and unfiled motions
• Researching trial counsel's contemporaneous case load
• Reviewing the portions of the trial transcript relevant to investigation-driven claims
• Identifying failures to investigate the offense and any extraneous offenses
• Identifying failures to investigate and challenge identification procedures
• Identifying failures in pretrial motions practice, including suppression motions
• Identifying failures to call witnesses
• Identifying failures to investigate State witnesses for impeachment material
• Identifying failures to investigate alternate suspects
• Identifying failures to test evidence or to enlist experts
• Identifying failures to obtain records available before trial
• Identifying failures to investigate the client's mental health, intellectual functioning, or trauma history
• Identifying failures in client communication, including communication about plea offers and discovery
• Identifying failures at the punishment phase, including failures to investigate and present mitigation
• Identifying failures under Padilla v. Kentucky in advising on immigration and other collateral consequences
• Identifying possible appellate ineffectiveness claims based on the available record and unraised issues

Prosecutorial and judicial misconduct

• Identifying possible Brady violations
• Investigating police and prosecutors for findings and credible allegations of misconduct
• Identifying undisclosed agreements with witnesses
• Investigating false testimony by State witnesses
• Identifying failures by police to investigate alternate suspects
• Investigating police personnel for a history of misconduct
• Researching perjured testimony by police
• Reviewing the handling and testing of evidence
• Identifying problems with the identification of the defendant
• Investigating malicious prosecution
• Investigating discriminatory selection of jurors
• Identifying judicial bias, conflicts of interest, and other misconduct

Juror investigation

• Investigating jurors for undisclosed criminal history, racial or other bias, and misconduct during trial
• Reviewing voir dire responses and juror cards
• Conducting background research on jurors, including criminal history
• Conducting social media research on jurors
• Preparing for and interviewing jurors where the rules of the jurisdiction permit

The work in practice

Reconstruction of the offense

We review the offense report and the underlying investigation as though approaching the case for the first time. A master timeline of the offense, the police investigation, and the prosecution is built. Discrepancies among witness accounts, between testimony and prior statements, and between the physical evidence and the State's theory are catalogued. The product is a fresh assessment of where the State's case is weak, independent of whatever was done before trial.

The pretrial defense investigation

Trial counsel's file is obtained and reviewed page by page. Billing records, investigator notes, expert correspondence, retainer agreements, and unfiled motions are reviewed. We determine what trial counsel knew, what counsel investigated, what counsel failed to investigate, and what strategic decisions were made. That review establishes the baseline against which a reasonable investigation is measured. It also identifies areas never pursued, including records obtainable before trial through subpoena power that is no longer available as of right.

Coordination with appellate and prior counsel

Where direct appeal is ongoing or recently concluded, we coordinate with appellate counsel and, where appropriate, with prior trial counsel. The trial record, the appellate briefs, and any supplemental materials are obtained and reviewed. Where prior counsel is willing to discuss the case, we interview them about their representation, their investigation, their strategic decisions, and their assessment of the trial. Where prior counsel is unwilling or unable to talk, we work from the file and the record.

Witness statements and reinterviews

Every statement a witness gave is collected and compared, including statements to police, statements to prior defense investigators, grand jury testimony, sworn statements, and trial testimony. Witnesses are then located and reinterviewed. The reinterview covers the witness's account of the offense and the witness's interactions with police, prosecutors, defense counsel, and prior investigators. We are looking for witnesses who were pressured at the time, who have recanted, or who were never asked the right questions. We are also looking for witnesses who were promised benefits, and for information that surfaced after trial.

New evidence and alternate suspects

We research and develop new evidence. That can mean locating witnesses never identified during the original investigation. It can mean identifying alternate suspects police considered and discarded, or never considered at all, and locating physical evidence still available for retesting. Where physical evidence is located, we work with counsel and counsel's experts on chain of custody and on the condition of the evidence. They then decide whether retesting by methods unavailable at the time of trial is warranted. Decisions about retesting and the technical work itself belong to the experts counsel retains. Other cases on appeal are reviewed for useful information, particularly cases involving the same investigators, prosecutors, forensic analysts, or informants.

Recantation investigation

Recantations recur in post-conviction cases and require specific attention. The original statement is documented, including the conditions under which it was given, the identity of the officers or others present, and the form in which it was preserved. The circumstances of the recantation are then developed, covering when the witness first came forward, who they spoke to, what prompted the recantation, and whether the timeline supports its reliability. We look at whether other evidence corroborates the recantation, including physical evidence, other witnesses, or contemporaneous records. We also look for any indication that the recantation itself was coerced or induced, since a court will ask. Recantations are documented in writing, ordinarily through declarations drafted at counsel's direction.

Informant investigation

Where the conviction relied on testimony from a jailhouse informant or another cooperating witness, we develop the informant's full history. That covers prior cooperation in unrelated cases, benefits received here and elsewhere, and charges pending at the time of testimony. It also covers sentence reductions, transfers, and any agreements with law enforcement or prosecutors, documented or not. Patterns across cases are identified. Informants who testify repeatedly often show a recognizable pattern, including testimony in other matters that follows a similar structure or involves overhearing confessions in similar circumstances. We work with counsel on records requests, on locating other defendants against whom the informant testified, and on identifying impeachment material never disclosed at trial. Informant investigation frequently overlaps with Brady analysis and with claims of false testimony.

Forensic science developments

Forensic science has moved a long way since many post-conviction cases were tried, and disciplines treated as reliable at trial have since been questioned or substantially revised. We locate the original forensic evidence, the underlying lab notes and bench files, the original analysts where they can still be identified, and the methodology applied at the time. The work covers DNA, bite mark analysis, hair microscopy, ballistics and toolmark analysis, fire and arson investigation, abusive head trauma diagnoses, blood spatter, and other pattern-matching disciplines. Our role is fact development and document collection. The experts counsel retains conduct the technical reexamination.

Physical evidence

Physical evidence is located and its chain of custody reconstructed. We review the original forensic analysis and identify methodology since questioned or discredited. Where retesting may be available, we work with counsel to identify the appropriate experts and to gather the records and underlying materials those experts will need.

Scene work after conviction

Where the scene is still accessible and conditions can still be documented, we visit it, photograph it, and observe it with the State's theory of the offense in mind. Lighting, sightlines, and environmental factors are documented. We are looking for problems with the State's account of how the offense occurred at the location as described, including problems never raised at trial. Where the scene has changed since the offense, those changes are noted. Counsel's reconstruction experts handle the technical work.

Ineffective assistance of counsel

Ineffective assistance is often the central claim in post-conviction litigation, and developing the facts behind it is one of our primary functions. We do not typically review the trial transcript in full for this purpose, since post-conviction counsel conducts that review. We read specific portions when investigation-related issues appear. Those include the testimony of a witness whose account has changed in reinterview and the cross-examination of a State witness whose impeachment material went unused. They also include voir dire on a particular juror and trial counsel's questioning on a discrete factual issue.

Factual development begins with trial counsel's file. Billing records, time entries, investigator notes, expert correspondence, retainer agreements, motions filed and unfiled, and case management records are reviewed page by page. Trial counsel's contemporaneous case load is researched through court records, docket searches, and other available sources. We look at what other matters counsel was carrying during the relevant period, including capital cases, complex felonies, and anything else competing for time and attention.

The investigation then turns to what trial counsel did and did not do. Failures to investigate the offense are documented by completing the investigation that should have been done and showing what it would have produced. Failures to investigate noticed extraneous offenses are documented the same way. Failures to call available witnesses are established by locating those witnesses, interviewing them, and obtaining declarations describing what they would have said at trial. Where witnesses were called but unprepared or not asked the right questions, that is documented as well.

Failures to test physical evidence or to retain qualified experts are addressed by working with counsel and counsel's experts to complete the analysis that should have been performed. Where testing is no longer possible because evidence was destroyed or lost, we document that fact and show what would have been available at the time of trial.

The investigation extends to other categories of trial counsel performance, most of which surface through factual investigation rather than transcript review:

• Failures in pretrial motions practice, including suppression motions never filed or filed without adequate factual development
• Failures to investigate and present a defense theory consistent with the available evidence
• Failures to investigate and challenge identification procedures
• Failures to investigate the State's witnesses for impeachment material, including criminal history, cooperation history, and pending matters
• Failures to investigate alternate suspects the evidence identified or suggested
• Failures to obtain and review records available before trial through subpoena and unavailable through compulsory process afterward
• Failures to investigate the client's mental health, intellectual functioning, or history of trauma, where those matters affect competency, the voluntariness of statements, or the defense theory
• Failures to investigate juror bias or misconduct apparent on the record or discoverable through reasonable inquiry
• Failures to communicate with the client, including failures to explain plea offers, to investigate matters the client raised, or to convey discovery
• Failures to preserve issues for appeal
• Failures at the punishment phase in capital and serious felony cases, including failures to investigate and present mitigation, to retain mental health experts, or to obtain records relevant to mitigation

The work establishes both deficient performance and prejudice under Strickland v. Washington. Deficient performance is shown by what trial counsel did or did not do, measured against what reasonable trial counsel would have done. Prejudice is shown by what the jury would have heard had the omitted investigation been performed. We develop the factual record on both prongs at counsel's direction.

Appellate counsel's performance is reviewed where appellate ineffectiveness is a potential claim. We work with post-conviction counsel on what was raised on direct appeal, what was available and not raised, and what record existed to support those claims.

Prosecutorial misconduct

Prosecutorial misconduct is among the most consequential areas of post-conviction investigation, and in some jurisdictions among the most common. Harris County has recorded 232 exonerations, second only to Cook County, Illinois, according to National Registry of Exonerations data current as of July 17, 2025. Those exonerations arise from several causes, and misconduct by the prosecution is among them. The work is broad, document-intensive, and frequently turns on what was absent from the file.

The work starts with Brady analysis. We obtain the police and prosecution files through open records requests, authorizations, and other available means, then compare what was disclosed at trial against what the files contained. Witness statements never turned over, alternate suspect leads never disclosed, and forensic results that did not support the State's theory are identified and documented. So are internal memoranda showing the prosecutor's awareness of weaknesses in the case, along with exculpatory or impeaching information of any kind. The work covers material subject to disclosure under Brady v. Maryland and material subject to correction under Napue v. Illinois.

Cooperating witness investigation often proceeds alongside Brady analysis. Undisclosed agreements with witnesses take several forms, including formal cooperation agreements, informal understandings, and benefits provided after the fact. We pursue them through records of the witness's other cases, transfer records, sentence reductions, dismissals, and the witness's own later statements. Where a witness described one set of expectations or benefits at trial, we develop the actual record of what was provided.

False or misleading testimony from State witnesses is examined against contemporaneous records. Police testimony is tested against reports, body-worn camera and dash camera footage, dispatch logs, and other documentation. Civilian witness testimony is tested against prior statements, physical evidence, and any record of the witness's contacts with police and prosecutors before trial. Where trial testimony cannot be reconciled with the contemporaneous record, we document the discrepancy and work with counsel on whether the prosecution knew or should have known.

Police personnel involved in the underlying investigation are themselves subjects of investigation. Internal affairs files, sustained discipline, civil rights litigation, license revocation proceedings, and credible allegations in other cases are pursued. In Texas, the Texas Commission on Law Enforcement maintains peace officer licensing records, including revocations and suspensions, searchable through its public license lookup. The separation reports describing the underlying conduct are largely confidential by statute, so the discipline file usually has to be sought from the employing agency. Some prosecutors' offices keep internal lists, sometimes called Brady lists, do-not-call lists, or Giglio lists, identifying officers whose credibility has been questioned for disclosure purposes. Where such a list exists and includes a witness in the case, we work with counsel on whether and how to pursue it. Officer testimony patterns across cases are reviewed where several cases involve the same officer.

Prosecutors involved in the underlying case are examined the same way. Findings of misconduct in other cases, bar discipline, and court orders criticizing the prosecutor's conduct are documented. So are patterns across prosecutions handled by the same office or the same individual. In jurisdictions with conviction integrity units, the existence and findings of those units may matter to the analysis.

We also look at the handling of physical evidence, including chain of custody problems, contamination, suppression or destruction of evidence, and methodology since questioned. Identification procedures are reviewed for suggestiveness, covering the composition of arrays and lineups, the instructions given to witnesses, and the timing of procedures relative to the offense.

Where the record supports it, we develop facts relevant to malicious prosecution claims and to discriminatory selection of jurors during voir dire. Other conduct affecting the integrity of the trial is developed the same way. The work is documented in writing as it develops, with declarations and supporting records assembled at counsel's direction.

Judicial misconduct

Where the record supports a claim of judicial bias, undisclosed conflicts of interest, or other misconduct, we develop the underlying facts. Judicial financial disclosures, prior representations, family or business relationships with parties or witnesses, and conduct at trial relevant to partiality are reviewed. Public records, court filings in other matters, and disciplinary records are pursued where relevant. Local rules govern what contact is permitted, and we work within those rules at counsel's direction.

Juror investigation

Jurors are investigated for undisclosed criminal history, racial or other bias, and misconduct during trial. Voir dire responses and juror cards are reviewed for omissions and inaccuracies. Background research is conducted on each juror, including criminal history checks. Social media accounts are located and preserved where they show bias, contact with parties or witnesses, or outside influence during trial. Where the rules of the jurisdiction permit, jurors are prepared for and interviewed. Local rules on juror contact vary, and we work within them at counsel's direction.

Padilla and collateral consequences

Where a claim involves Padilla v. Kentucky or a related collateral consequence issue, we develop the facts about what trial counsel advised the client. The advice at issue concerns immigration and the other consequences of the conviction. That work includes reviewing trial counsel's file for any record of immigration consultation and interviewing the client about what was discussed at the plea or pretrial stages. Records of the client's status are obtained where authorized. Counsel handles the legal analysis of whether the advisement was adequate. Padilla does not apply retroactively to convictions that became final before March 31, 2010, under Chaidez v. United States, which limits the claim in older cases.

Prison records

The client's prison records are obtained where relevant. Disciplinary records, programming records, classification records, medical and mental health records, and visitation logs are reviewed depending on the issue. Those records can matter to ongoing investigation, including statements the client has made and contacts with informants or co-defendants. They can also matter to mitigation and to continuing record development at counsel's direction.

Records collection after conviction

Records collection at this stage operates under different constraints. Subpoena power and trial-level compulsory process are not available to us as of right. Records are obtained through open records requests under the Texas Public Information Act, or under the Freedom of Information Act for federal records. They are also obtained through requests supported by authorizations signed by the client or by family members, and through voluntary production by witnesses and custodians. Where counsel obtains leave for habeas-specific discovery, we support that work. Otherwise we use the available informal and statutory mechanisms and identify alternate sources for records we cannot obtain directly.

We oversee production from agencies and third parties, follow up on outstanding requests, and track what has been requested, what has been produced, and what remains outstanding. Records are provided to counsel as they arrive. The law firm keeps the organized case file.

Post-conviction mitigation support

Mitigation investigation after conviction is a separate discipline conducted by mitigation specialists and mitigation investigators retained for that purpose, and Liberty Investigations does not perform that role. In capital post-conviction cases the mitigation work is extensive and multi-generational. The mitigation team gathers records across the client's lifetime, including birth, medical, school, mental health, child welfare, juvenile, military, employment, and corrections records. They interview family members across several generations. The record they develop covers trauma, mental illness, intellectual disability, exposure to violence, substance abuse, and other factors affecting moral culpability that should have been presented at sentencing.

We work alongside the mitigation team and provide fact investigation support where requested, including locating witnesses, obtaining records, and developing factual context about the offense and the client's circumstances. Where witness interviews overlap between the fact and mitigation tracks, the investigators coordinate to avoid duplication and to keep each track of work intact. In non-capital cases mitigation work is narrower. It still matters where ineffective assistance at sentencing is claimed, where the client has an Atkins claim, or where competency at trial is at issue. Where claims involve competency, intellectual disability, or Atkins issues, the mitigation team and the mental health experts counsel retains lead the development of the underlying historical record. We assist with records collection where requested.

Capital cases

Capital post-conviction work proceeds under specific procedural rules at both the state and federal level, and those rules vary by jurisdiction. The scope of investigation is generally broader than in non-capital cases, particularly on mitigation, mental health, and intellectual disability. Capital cases often involve large legal teams that include Capital Habeas Units, pro bono law firms, and the specialists retained for the case. Capital Habeas Units and pro bono firms frequently appear as co-counsel, each contributing resources, expertise, and capacity. We coordinate with the legal team across both stages, building the factual record at the state level so it is available for federal review if federal review becomes necessary.

Preservation of the record

We work with counsel so that the factual record developed in the state proceeding is complete and well supported. Affidavits are obtained from witnesses, declarations are drafted at counsel's direction, and records are authenticated, all with attention to the standards counsel has identified as relevant to federal review.

Reporting

We provide written reports of interviews, background investigations, records collection efforts, and other investigative work. Reports are prepared as attorney work product and organized for pleadings and hearings. Formatting follows the directing attorney's preferences, including exhibit labels, Bates numbering, or another reference convention as directed.

Texas mechanisms

Article 11.073, the changed science provision

Texas allows habeas relief where relevant scientific evidence was unavailable at trial through the exercise of reasonable diligence, or where the scientific evidence the State offered has since been contradicted. The court must also find that the person would not have been convicted had the current science been presented. Article 11.073 has stood in its present form since the 2015 amendment. House Bill 115 of the 2025 regular session would have broadened it and passed the House by a vote of 124 to 14, then died in the Senate. Investigation supporting an Article 11.073 claim means locating the original bench notes and lab files, identifying the analysts, and establishing what the discipline held at the time of trial. Counsel's experts then receive the material they need to state what it holds now.

Chapter 64, forensic DNA testing

A convicted person may move the convicting court for forensic DNA testing. The court orders testing only on findings that the evidence still exists and remains in a condition making testing possible. The court must also find a sufficient chain of custody, a reasonable likelihood that the evidence contains biological material suitable for testing, and that identity was or is an issue. The movant must show by a preponderance that they would not have been convicted had exculpatory results been obtained. The motion must also not be filed to cause unreasonable delay. A guilty plea, a confession, or an admission does not by itself allow a court to find that identity was not an issue. Much of the investigative work under Chapter 64 consists of locating the evidence and reconstructing its custody history, since a motion fails without both.

Article 39.14, the Michael Morton Act

Subsection (h) requires the State to disclose any exculpatory, impeachment, or mitigating document, item, or information. Subsection (k) makes that duty continuing, requiring prompt disclosure at any time before, during, or after trial. A post-conviction Brady investigation regularly turns up material that Subsection (k) required the State to produce after the conviction. The failure to produce it is itself a subject of investigation.

Peace officer licensing records

The Texas Commission on Law Enforcement maintains licensing records for peace officers, including revocations and suspensions, searchable through its public license lookup. Separation reports filed when an officer leaves an agency are largely confidential under the Occupations Code. The exception is narrow, covering separations involving substantiated excessive force or a law violation, so the discipline file usually has to be sought from the employing agency. Those records, alongside internal affairs files and civil rights litigation, support the pattern evidence that misconduct claims depend on.

Time horizon and practical constraints

Post-conviction investigation typically begins years after the offense and the trial. Witnesses have moved, died, or become hard to find. Memories have faded, physical evidence may have been destroyed or lost, and police files may have been purged. We work against those constraints and document the efforts made to locate evidence and witnesses, since the record of diligence can itself matter to procedural questions about timeliness and exhaustion.

At the same time, we have access to the full trial record, the appellate record, and trial counsel's file, none of which exists before trial. We know what the State's case was, what the defense was, and where the gaps are. The work is narrower in some respects and considerably broader in others.

Legal posture

Pretrial work proceeds under the presumption of innocence. Post-conviction work proceeds against a presumption that the conviction is valid, and the investigation builds the record needed to overcome it.

Audience

Pretrial work is built for a jury, for a trial judge ruling on motions, or for a prosecutor weighing a plea. Post-conviction work is built for a state habeas court and, after that, for a federal court. The federal court reviews the state record under the deferential standard the Antiterrorism and Effective Death Penalty Act imposes.

Scope of the record

Pretrial investigators build the record from nothing. Post-conviction investigators inherit one. We reconstruct what happened, identify what was missed, and develop what the original factfinder never heard. We also investigate the trial process itself, including the performance of trial counsel, the conduct of the prosecution, the conduct of the court, and the conduct of the jury.

Time

Pretrial investigation is compressed and forward-looking. Post-conviction investigation is extended and backward-looking. Witnesses, evidence, and records readily available before trial can take months or years to recover afterward, if they can be recovered at all.

Relationship to trial counsel

Pretrial investigators work alongside trial counsel as part of one team. Post-conviction investigators often work in tension with trial counsel, whose performance is itself a subject of investigation when ineffective assistance is claimed.

Procedural rules

Pretrial investigation is governed by trial court scheduling orders and discovery rules. Post-conviction investigation is governed by the state habeas statutes, the federal habeas provisions, and the limits those rules place on what can be raised, when, and how. After conviction, subpoena power and trial-level compulsory process are no longer available as of right, and that is the most consequential practical difference.

Families

Post-conviction investigation takes time, and it is not unusual for the investigation phase to last a year or longer in a complex case. Capital matters and decades-old convictions take longer still.

Witnesses have moved, died, or become hard to find. Records available before trial through subpoena have to be pursued through open records requests, authorizations, and voluntary cooperation, and each of those moves on its own schedule. Agencies and custodians respond at different speeds, and follow-up over months is common. Trial counsel's file, the appellate record, and the police and prosecution files all have to be obtained and reviewed before fact development can be focused. New facts that surface during the investigation open additional areas of work nobody could see at the outset, and the scope of the case expands as a result.

We prioritize the work most likely to support the legal claims under development. Thorough fact investigation in a post-conviction case is rarely brief. Families should expect an extended period of work, with periodic updates from counsel instead of continuous contact. The scope is subject to change as the case develops.

Families will be asked to share difficult and personal information about the client and about the family across several generations. That information is gathered because it can support legal claims affecting the outcome of the case. Everything shared with us is confidential and protected as attorney work product.

Outcomes in post-conviction litigation are not predictable. Even where the factual development is strong, the procedural and legal hurdles are substantial, and relief is not the most common result. Our work is to develop the strongest factual record available. Counsel and the court decide what that record produces, and no one involved in the case can guarantee a particular outcome.

Incarcerated clients

We may ask questions that have already been asked many times. We will also ask questions nobody asked before. Those cover trial counsel's representation, the people the client knew at the time of the offense, and the client's life history. Honest and complete answers let counsel identify and support claims for relief, including answers about things the client would rather not discuss.

The investigation will likely take longer than the client expects, and most of the work is happening even when nothing appears to be happening. Records requests can take months to produce results. Locating a witness often requires repeated attempts over a long period. We and counsel work in parallel on different parts of the case, and progress is not always visible from the inside.

Attorneys

The scope of investigation should be defined in writing at the outset and revisited as the case develops. We should be brought in early enough to participate in claim development instead of executing tasks after the claims are drafted. Our findings are documented in writing in a form that can be incorporated into pleadings, attached as exhibits, or used to draft witness declarations. We follow the document referencing convention and reporting style the attorney's firm prefers.

Investigation is staged by what is most likely to support the legal theory under development and by what is time-sensitive. Priorities are revisited as new facts arrive and as claims develop or shift. Scope expansion is common as the investigation opens new areas of work, and counsel and investigator should expect to discuss scope changes as they arise instead of only at retention.

Pretrial and post-conviction investigation are related disciplines, and they are not interchangeable. Both require working knowledge of criminal procedure, evidence, and investigative technique. The posture, the legal standards, the time horizon, and the scope of the record all differ. Experience in the relevant stage affects the quality of the work and the record on which relief depends.

Limits on our role

We are investigators. We do not give legal advice, and we do not tell a client or a family whether a claim will succeed. Counsel decides which claims to plead, drafts the application, and argues it. An investigation can be thorough and complete and still produce no relief, because the standards at this stage are demanding, so we do not guarantee outcomes.

We reach represented parties only through their counsel. On juror contact, on contact with jurors' families, and on contact with victims and their families, we work within the rules of the jurisdiction, and counsel directs that contact.

Mitigation investigation is a distinct specialty, and we collaborate with mitigation specialists rather than filling that role. Expert forensic analysis and scene reconstruction belong to the experts counsel retains. We do not create facts. Where the investigation produces nothing helpful, we say so and document what was done, because the record of a diligent search can itself matter to a procedural question.

This document is provided for general informational purposes. It is not legal advice and it does not create an attorney-client relationship. Specific cases should be discussed with qualified post-conviction counsel.