(The Return of) Ignatz, by Sam Heldman

Friday, March 21, 2003

S.Ct. prediction
The second case to be argued Monday is a death penalty case, about the constitutional right to effective assistance of competent counsel. The case is Wiggins v. Smith. The U.S. Court of Appeals for the Fourth Circuit upheld the conviction and death sentence. The Supreme Court agreed to hear the case, but only as to the sentence (and not the conviction itself).

Here's the deal in a nutshell (which is a nice way of saying "somewhat oversimplified"). As you probably know, in a case involving a potential death sentence, the trial unfolds in two phases: guilt and penalty. If the defendant is convicted, then in the penalty phase there is additional evidence on the existence (or not) of "aggravating" or "mitigating" circumstances, leading to a decision on whether to impose a death sentence. Mitigating circumstances often include such things as the defendant's personal history, including abuse suffered during childhood. And as you also probably know, you have a constitutional right to the effective assistance of counsel, a constitutional entitlement to some level of competence in your defense.

Wiggins claims – and the federal trial court, reviewing his state-imposed death sentence, agreed – that his right to effective assistance of counsel was denied, when his lawyer not only failed to offer any "mitigation" evidence in the penalty phase, but furthermore did so without having made any investigation into what mitigation-type evidence might exist. But the Fourth Circuit – with a panel including possible Supreme Court nominee Judge Wilkinson – reversed, upholding the death sentence. They described the lawyer's failure even to investigate possible mitigation evidence as a "reasonable strategic decision".

Weighing in Wiggins's favor, here, are two main things: (1) the Supreme Court's decision in Williams v. Taylor (2000), which granted habeas corpus relief to a death row prisoner on the grounds that his lawyer had been ineffective in failing to obtain mitigation evidence; and (2) amicus briefs filed by the American Bar Ass'n and various former prosecutors including Janet Reno. If Wiggins can keep either Justice O'Connor or Justice Kennedy – both of whom voted for Williams in the earlier case – then he wins.

The Fourth Circuit, though, said that this case was different from Williams in that (they said) Wiggins's lawyer made a sensible strategic decision not to investigate possible mitigation evidence, whereas Williams's lawyer, in the earlier case, failed to investigate such evidence because he didn't realize he could. Does that distinction hold up? Certainly not in my mind; unless there is some special reason to believe that Wiggins's lawyer could not have done at least an initial investigation of possible mitigation evidence and done whatever else he thought was important too, the idea of "a reasonable strategic decision not to investigate the sort of thing that often makes the difference in death penalty cases" sounds nonsensical to me. Mitigation evidence is absolutely critical in many capital cases; it simply makes no sense to decide not to investigate for such evidence. Reversal seems to me the obviously correct outcome.

What's weighing, though, in favor of affirmance? Two things: (a) the very difficult-to-meet legal standard applicable to federal habeas corpus claims, in which it must be shown not only that the state court's decision was wrong but that it was, beyond just being wrong, unreasonable. (This is an oversimplification, but it gets the gist about right; see this recent case); and (b) the Supreme Court's general high regard for the judges on the Fourth Circuit. Why does (b) matter? Because the panel in this case didn't just rule for the State by saying that the state court's decision was reasonable (even if perhaps wrong); they at least implied, and as I read it they in fact said pretty much, "We think that the state court was right; the lawyer made a reasonable strategic decision to forego investigation." So, in order to rule for Wiggins, five Justices would have to say, more or less, "The panel's understanding of this aspect of the Constitution is beyond wrong; it's not even reasonable." And some Justices might be less likely to do that, because they don't think of the conservative Fourth Circuit judges as unreasonable people.

How does this come out? A very hard call, but I'm betting on a reversal here. After all, Justice O'Connor is on record as being concerned with the fairness of death penalty proceedings; and you can't have fairness unless you have lawyers who do reasonable investigation into the facts before making absolutely crucial strategic decisions. So I say, with much trepidation, REVERSE.

posted by sam 6:40 AM 0 comments


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