Court confirms importance of mitigation in sentencing.

In Wiggins v. Smith, the U.S. Supreme Court, by a surprising 7-2 vote, struck down the death sentence of a convicted murderer, due to ineffective assistance of counsel in the penalty phase of the trial. (1) Kevin Wiggins was tried before a Maryland judge mad found guilty of murdering the victim and then taking her car, credit cards, and other property. The robbery evidently was the aggravating factor on which the death penalty was based.

After he was convinced, Wiggins elected to have a .jury determine his sentence. His lawyers--Carl Schlaich and Michelle Nethercott, two Baltimore County public defenders--sought to bifurcate the penalty phase to show that Wiggins was not the actual killer or, if that failed, to present evidence of his very bad childhood as a mitigating factor. Although the bifurcation request was denied, Nethercott advanced these two arguments in her opening statement. In the proceedings themselves, however, she and Schlaich introduced no evidence of Wiggins's life history:

Tactical decision

In postconviction proceedings, a forensic social worker testified about evidence of "severe physical and sexual abuse [that the] petitioner suffered at the hands of his mother and ... foster parents." (2) Schlaich testified that he and Nethercott had not hired such an expert or used the child-abuse evidence at sentencing because they had made a tactical decision to "'retry the tactual case' and disput[e] Wiggins's direct responsibility for the murder." (3) The postconviction judge observed that "not to do a social history [of the defendant], at least to see what you have got, to me is absolute error.... I would be flabbergasted if the court of appeals said anything else." (4) Nevertheless the judge, and the court of appeals, denied relief because counsel had made a deliberate tactical decision.

The Maryland Court of Appeals went on to observe that Wiggins's attorneys knew of his unfortunate childhood from the presentence report and social service records but chose not to use this information or develop it further. (5)

On federal review, the district judge granted relief; rejecting the reasoning of the Maryland court. The judge held that "for a strategic decision to be reasonable, it must be 'based upon information the attorney has made after conducting a reasonable investigation.'" (6) The Fourth Circuit reversed this ruling, again based on the "tactical decision" rationale. It pointed to the Supreme Court's test: "When considering claims of ineffectiveness, 'we address not what is prudent or appropriate but only what is constitutionally compelled.'" (7)

The Fourth Circuit elaborated:

   The attorneys viewed the case against Wiggins
   at the guilt phase as quite flimsy....
   Schlaich "believed that [Wiggins's] best
   hope of escaping the death penalty was for
   one of more of the jurors to entertain a reasonable
   doubt as to" whether Wiggins was
   the actual killer. Add to that the stipulated
   fact of Wiggins's clear [that is, no prior]
   record. On the other hand was Wiggins's
   social history.... Schlaich had knowledge of
   [this] ... and likely knew that additional
   development would have resulted in more
   sordid details surfacing. Nonetheless,
   Schlaich decided that social history evidence
   was problematic in that it tended to conflict
   with any attack on principalship: Counsel
   would present a picture to the jury of an
   innocent man, notwithstanding his murder
   conviction, and then, to the same fact-finder,
   argue that if he was the principal, then the
   jury should be lenient because of his difficult
   childhood. Schlaich was aided by the
   fact that the guilt trial had not been before
   the jury. (8)

The Supreme Court, in an opinion by Justice Sandra Day O'Connor, rejected this reasoning. First, the Court acknowledged that it was required, under the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), to limit its analysis to whether the state courts had violated law that was "clearly established" at the time of the state court proceedings. (9) The Court held that they had, pointing to its 1984 decision in Strickland v. Washington as the standard that had been violated. Strickland held that

   strategic choices made after thorough investigation
   of law and facts relevant to plausible
   options are virtually unchallengeable; and
   strategic choices made after less-than-complete
   investigation are reasonable precisely
   to the extent that reasonable professional
   judgements support the limitations on investigation.
   In other words, counsel has a duty
   to make reasonable investigations or to
   make a reasonable decision that makes particular
   investigations necessary. In any
   effectiveness case, a particular decision
   not to investigate must be directly assessed
   for reasonableness in all the circumstances,
   applying a heavy measure of deference to
   counsel's judgments." (10)

This passage is hardly a model of clarity and the majority's reliance on it shows how easily the Court can get around the AEDPA's limitations if it is so inclined. As Justice Antonin Scalia observed in dissent, even if the Court disagreed with Wiggins's attorneys' explanation of their tactics, under the act it was entitled to upset the state court's factual determinations only if they were "unreasonable." (11)

The Court cited William v. Taylor (12) as "illustrative" of its application of the Stricland standard. In Williams, the Court reversed a death sentence on ineffective-assistance grounds due to counsel's failure to develop mitigating evidence. This failure "could not be justified as a tactical decision to focus on Williams's voluntary confessions, because counsel had not 'fulfill[ed] their obligation to conduct a thorough investigation of the defendant's background.'" (13)

The Court acknowledged that Williams, which was decided after the Maryland courts acted in Wiggins's case, was not directly relevant; the majority simply used it as another example of the Strickland standard in action. (14)

The Court then reached the crux of its holding: "[O]ur principal concern in deciding whether [the lawyers] exercised 'reasonable professional judgment' is not whether counsel should have presented a mitigation case. Rather, we focus on whether the investigation supporting counsel's decision not to introduce mitigating evidence of Wiggins's background was itself reasonable." (15)

The Court concluded it was not, citing Maryland and American Bar Association standards. Indeed, despite the lawyers' efforts to characterize their failure to present social history as a strategic choice, there is no explanation for their failure to at least obtain a full history before deciding whether or not to use it. Defense counsel are not bound to hand over to the prosecution any inculpatory information they uncover, as the prosecution is required to hand over exculpatory information to the defense. (16) And defense attorneys increasingly recognize that presenting a detailed social history to jurors is an effective way to "humanize" a defendant and make jurors more sympathetic to his or her plight. (17)

Still, it is surprising to see O'Connor--who dearly crafted her Strickland opinion to discourage all but the most egregious claims of ineffective assistance of counsel--reversing a death sentence where the attorneys at least secured to offer a plausible explanation for their tactics. It's even more surprising to see the chief justice join her. This seems to reflect O'Connor's concern, expressed in 2001, about "minimum standards" and "adequate compensation" for appointed counsel in death cases. (18)

The Court was obviously suspicious of the "tactics" explanation offered by Wiggins's lawyers: (19)

   [C]ounsel uncovered no evidence in their
   investigation to suggest that a
   mitigation case, in its own right,
   would have been counterproductive,
   or that further investigation
   would have been fruitless;
   this case is therefore distinguish
   able from our precedents in
   which we have found limited investigations
   into mitigating evidence
   to be reasonable. (20)

In other words, the Court suspected that the lawyers' claim of a "tactical decision" was made up after the fact to avoid the embarrassment of having their client's conviction reversed because of ineffective assistance. Thus, Wiggins stands for the proposition that counsel cannot hide behind a claim of "tactical decision" to avoid findings of ineffectiveness unless the claim appears justified.

Power of history

A recent article in The New York Times Magazine concerning a death penalty case in Indiana included an excellent example of a case in which a defendant's social history was used successfully as a mitigating factor in sentencing. After hearing about the defendant's history--which was bad, but not as bad as Wiggins's--the jurors not only rejected the death penalty, but in subsequent interviews they "referred to [the defendant] by his first name, as if they were speaking of a family member or a friend." (21)

The article notes that death sentences declined from a nationwide peak of 319 in 1996 to 155 in 2001. (22) The author attributes this decline to two principal factors: the availability of life-without-parole sentences and the fact that "an increasing number of defense attorneys have become more skilled and resourceful in persuading jurors that the lives of their clients are worth saving." (23)

The Wiggins decision--which effectively requires defense counsel to compile a social history for any death penalty defendant ii it might be helpful (24)--is to be applauded. In most criminal cases, the prosecution portrays the defendant as a vicious, of at best uncaring, killer, and the victim (if possible) as a paragon of society. But before jurors decide that a defendant should be executed, it is only right that they be fully informed about the character of the person whose fate they are deciding.

Notes

(1.) 123 S. Ct. 2527 (2003).

(2.) M. at 2533.

(3.) Id.

(4.) Id.

(5.) Id., quoting Wiggins v. State, 724A.2d 1, 15 (Md. 1999).

(6.) Id. al 2534 (quoting Wiggins v. Corcoran, 164 F. Supp. 2d 538, 558 (D. Md. 2001)).

(7.) Wiggins v. Corcoran, 288 F.3d 629, 641 (4th Cir. 2002) (quoting United States v. Cronic, 466, U.S. 648, 665 n.38 (1984)).

(8.) Id. at 641-42, quoting Wiggins, 724A.2d 1,15.

(9.) 123 S. Ct. 2527, 2534.

(10.) 466 U.S. 668,690-9/ (1984).

(11.) 123 S. Ct. 2527, 2544 (quoting 28 U.S.C. [section] 2254(d) (Scalia, J., dissenting)).

(12.) 529 U.S. 362 (2000).

(13.) 123 S. Ct. 2527, 2535 (quoting Williams, 529 U.S. 362,396 (citing ABA standards)).

(14.) Id. at 2535-36.

(15.) Id. at 2536 (emphasis in original).

(16.) See, e.g., United States v. Bagley, 473 U.S. 667 (1985).

(17.) Alex Kotlowitz, In the Face of Death, N.Y. TIMES, July 6, 2003

(Magazine), at 32, (citing findings of the Capital Jury Project).

(18.) Inadequate Representation (May 4, 003), available at www.aclu.org/DeathPenalty/Death Pcnalty.cfm?ID=9313&c=62 (last visited Aug. 27, 2003).

(19.) As Scalia wrote, "The Court assumes sub silentio throughout its opinion that Schlaich was not telling the truth." 123 S. Ct. 2527, 2548 (Scalia, J., dissenting).

(20.) Id. at 2537.

(21.) Kotlowitz, supra note 17.

(22.) Id.

(23.) Id.

(24.) That is, unless "counsel could 'reasonably surmise ... that character and psychological evidence would be of little help.'" Wiggins, 123S. Ct. 2527, 2537 (citing Strickland, 466 U.S. 668, 699). It follows (although the Court does not say so) that ii counsel must develop a social history to avoid ineffectiveness claims, the state must pay for the compilation of such a history for indigent defendants. See Ake v. Okla., 470 U.S. 68 (1985).

CRAIG M. BRADLEY is the James Louis Calamaras Professor of Law at Indiana University School of Law in Bloomington. He can be reached by e-mail at [e-mail].