Chapter 2 Competency of Counsel: Mitigation and National Standards of Practice

CHAPTER 2 Competency of Counsel: Mitigation and National Standards of Practice

Peter A. Joy and Rodney J. Uphoff

Good defense lawyers humanize the accused in an effort to secure the best possible outcome for their clients. In a capital case, it is even more important that defense counsel present a compelling case for life despite the accused's alleged horrific acts. The competent, effective representation of the accused in the penalty phase of a capital case demands that counsel develop and effectively present mitigation evidence.¹ Simply put, the failure to gather and present mitigation evidence not only may constitute ineffective assistance of counsel but also may mean the difference between life and death for a client.

Without a thorough investigation into a client's background, especially the client's mental health history, however, counsel is unlikely to be able to develop the mitigation evidence needed to outweigh the government's aggravating evidence and convince jurors that they should not recommend the death penalty. Evidence of the defendant's severe mental illness, intellectual impairment, or chronic childhood trauma may be critical to counsel's ability to persuade the jury that, given the defendant's background and character, the defendant ought not to receive the death penalty. Unquestionably, developing and presenting mitigation evidence is an essential, but by no means easy, dimension of representing a client in a capital case. The difficulty of the task is compounded because a client's mental health issues often interfere with defense counsel's efforts to develop and present complete and persuasive mitigation evidence.

In this chapter, we explore both the legal and ethical dimensions of developing and presenting mitigation evidence. We also review national standards of practice and norms relating to defense counsel's obligations in the penalty phase of a capital case. Finally, we examine the consequences when a lawyer fails to adequately develop or present mitigation evidence in a capital case.

The Constitutional Standard for Competent Representation in the Penalty Phase of a Capital Case

The constitutional standard for effective assistance of counsel under the Sixth Amendment is defined by the Supreme Court's two-prong test developed in Strickland v. Washington,² which requires a defendant to prove that (1) counsel's performance was "deficient," and (2) the deficient performance prejudiced the defense such that the defendant did not receive a fair trial. Under this two-part test, showing that counsel's representation was subpar is not enough to secure relief. Rather, the client's conviction will be set aside only if the defendant also proves that counsel's ineffective representation prejudiced the defendant. To prove prejudice, the defendant must demonstrate "that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different."³

As many commentators have noted, the Strickland test sets a very high bar for evidence sufficient for a court to find that counsel's shoddy representation rises to the level of ineffective assistance of counsel. Unfortunately, the Court has only infrequently granted relief to a criminal defendant despite counsel's poor representation in many capital cases, because the Court finds that the prejudice prong has not been met. As a result, Strickland tolerates representation that many commentators and good criminal practitioners find wholly unacceptable.⁴

Nevertheless, it is important to remember that the Supreme Court's ineffective assistance of counsel jurisprudence does not tell us how defense counsel ought to perform in a capital case. The Court has not defined the steps that conscientious defense counsel should take to defend a capital defendant properly. Rather, Strickland and its progeny only identify when counsel's subpar performance is so prejudicial that it is constitutionally unacceptable.

Despite its tolerance of halfhearted representation and of questionable strategic decisions, the Court has found some defense lawyering so inadequate that it has deemed such representation to be constitutionally offensive. Fortunately, the Court has been less tolerant of counsel's poor performance in the penalty phase of several capital cases. The Court has recognized that developing and presenting mitigation evidence is an essential part of providing effective representation because of the critical role mitigation plays in a death penalty case. In upholding the Georgia death penalty statute in Gregg v. Georgia,⁵ the Supreme Court emphasized the important role mitigation evidence and sentencing procedures serve in "focus[ing] the jury's attention on the particularized nature of the crime and the particularized characteristics of the individual defendant."⁶ In striking down Ohio's death penalty statute because it did not give the sentencing judge the opportunity to consider mitigating circumstances, the Court, in Lockett v. Ohio,⁷ stated that the sentencer must "not be precluded from considering as a mitigating factor, any aspect of a defendant's character or record and any of the circumstances of the offense that the defendant proffers as a basis for a sentence less than death."⁸ Other states followed the Court's cue, and today every state's death penalty statute provides for "individualized consideration of the particular circumstances of the defendant's life (mitigating evidence)."⁹

In a series of death penalty cases, the Supreme Court has found that defense counsel's investigation, preparation, or presentation of mitigation evidence was constitutionally inadequate. In Williams v. Taylor,¹⁰ the Court held that defense counsel's representation was ineffective for failing to thoroughly investigate the defendant's background and thereby failing to present important mitigation evidence. Such evidence included that the defendant had been abused as a child, was "borderline mentally retarded," had only a sixth-grade education, and was evaluated by prison officials as nondangerous. Counsel also failed to follow up with a witness who volunteered to testify on his client's behalf and failed to properly prepare for sentencing. The Court concluded, therefore, that counsel's unprofessional performance prejudiced Williams.

In another case, Wiggins v. Smith,¹¹ the Court found that defense counsel was ineffective for failing to conduct a reasonable investigation. As a result, counsel failed to discover significant mitigating evidence that a professionally reasonable investigation would have uncovered. The Court rejected trial counsel's claim that his decision not to present this mitigating evidence was strategic, concluding that "strategic choices made after less than complete investigation are reasonable" only if "reasonable professional judgments support the limitations on investigation."¹²

The Wiggins case also highlights the damage done by an inadequate investigation. The Court described the powerful mitigation evidence never presented at trial, including the severe abuse the defendant suffered at the hands of his alcoholic mother and the sexual molestation and rapes he had to endure in foster care. The Court concluded that had a competent lawyer provided the jury with the defendant's significant life history, it would have returned a different sentence.

The Wiggins case is important not only because it further delineated the defense counsel's obligation to investigate and to prepare for the sentencing phase of a capital case but also because the Court relied on the ABA Guidelines for the Appointment and Performance of Counsel in Death Penalty Cases¹³ (ABA Guidelines) in determining that counsel's conduct was unreasonable.¹⁴ The Court observed that the standard practice in Maryland at the time of Wiggins's trial was for defense counsel to retain a forensic social worker to prepare a comprehensive social history report. Despite the availability of funds to hire a social worker to do a report, counsel inexplicably chose not to do so. In recognizing the ABA Guidelines as "well-defined norms," the Court signaled that the reasonableness of counsel's performance in death penalty cases should be viewed in light of the standard of practice the ABA Guidelines require. It concluded that trial counsel's inadequate performance in Wiggins was the product of inattention, not strategy.

In addition to investigating mitigation evidence, defense counsel must also examine potential aggravating evidence in order to provide effective assistance of counsel in defending against it at sentencing. In Rompilla v. Beard,¹⁵ the Court held that although defense counsel had conducted an investigation into possible mitigation evidence by interviewing the defendant and his family, the duty to investigate extended to reviewing evidence the prosecutor was likely to use as an aggravating factor, in this case a court file of a prior conviction. The Court determined that if counsel had reviewed the court file, counsel would have found a lead to other mitigation evidence and counsel would have been able to defend better against the aggravating evidence.

It is not enough for capital defense counsel simply to present some mitigation evidence. Rather, as Sears v. Upton¹⁶ highlights, the Court has held that counsel's failure to investigate, develop, or present mitigation evidence to be so deficient and prejudicial that relief was warranted. In Sears, the defense presented mitigation evidence that Demarcus Sears had a stable upbringing, and the mitigation theory "was calculated to portray the adverse impact of Sears's execution on his family and loved ones." The prosecutor then used the evidence of the stable upbringing against Sears in closing argument, characterizing Sears as "privileged in every way, who has rejected every opportunity that was afforded him."¹⁷ Postconviction defense counsel presented evidence that Sears's upbringing "was anything but...