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staff reporter Washington-A new era of tougher scrutiny of defense lawyers’ work in death penalty trials is expected as the result of an end-of-term U.S. Supreme Court ruling. In a case that was largely overshadowed by rulings on affirmative action and gay rights, the court court took a major step toward dealing with the pervasive and persistent problem of inadequate representation for indigent capital murder defendants. Wiggins v. Smith, 02-311. A 7-2 majority led by Justice Sandra Day O’Connor held that the performance of public defenders representing Kevin Wiggins in the sentencing phase of his capital murder trial violated his Sixth Amendment right to effective assistance of counsel. Justices Antonin Scalia and Clarence Thomas dissented. Wiggins is only the second case in nearly 20 years in which the justices found a death row inmate had received ineffective assistance of counsel under standards announced in Strickland v. Washington, 466 U.S. 668 (1984). The first case was three years ago, Williams v. Taylor, 529 U.S. 362 (2000). The promise of Williams-to put teeth into the Strickland standards-has not been fulfilled, according to some scholars and litigators. But Wiggins, they added, will not be so easily ignored by lower courts. The striking elements of the latest case: It did not involve extraordinarily egregious representation by a sleeping or drunk lawyer. Wiggins probably received better representation than many death row inmates, experts said. But the justices still found that inadequate under Strickland. The ruling should lay to rest the near sacrosanct quality of a lawyer’s “tactical” decision to make no effort, or only a half-hearted one, to present a jury with mitigating factors that would offset aspects of the crime that could result in a death sentence. A typical mitigating factor is childhood abuse of the defendant that must be established through investigation by the defense. The Wiggins case, like Williams, came from the 4th U.S. Circuit Court of Appeals, long considered hostile to death row inmates’ claims of ineffective assistance of counsel. After more than a decade of steps by Congress and the high court to restrict federal court review of state prisoners’ claims, the ruling and another death case decision last term appear to revitalize the responsibility of federal courts in federal habeas review-the “safety net” for prisoners claiming constitutional violations unad- dressed by state courts. Wiggins suggests that “the era of sweeping bad representation under the rug may be over,” said veteran capital litigator David I. Bruck of Columbia, S.C. “It’s a huge development in our part of the world.” Wiggins was convicted by a Maryland judge in 1989 of the murder of a 77-year-old woman who drowned in the bathtub of her ransacked apartment. Before the sentencing proceeding, his counsel unsuccessfully sought to bifurcate that proceeding, first to present evidence that Wiggins was not the principal in the murder and, second, to present mitigating evidence. After the judge’s denial of bifurcation, the sentencing proceeding began and Wiggins’ counsel told the jury that it would hear evidence suggesting that someone else was the actual killer and that Wiggins had had a difficult life. During the sentencing proceeding itself, however, his counsel offered no evidence of Wiggins’ life history. Before closing arguments, his counsel did make a proffer to the court, outside of the jury’s presence, detailing the mitigation evidence that would have been presented if the court had approved bifurcation. But that evidence-reports on Wiggins’ intellectual capacities and emotional state-did not include evidence of what later was found to be a horrendously abusive childhood. After being sentenced to death, Wiggins brought a claim of ineffective assistance of counsel for failure to present a mitigation case. The Maryland Court of Appeals ruled that his trial counsel made “a deliberate, tactical decision to concentrate their effort at convincing the jury” that Wiggins was not directly responsible for the murder. In federal habeas, represented by Donald B. Verrilli Jr., a partner at Chicago’s Jenner & Block, Wiggins won relief before a federal trial court. It held that the Maryland court’s rejection of his claim was “an unreasonable application of clearly established federal law.” The court said that for a tactical decision to be reasonable, it must be “based on information the attorney has made after conducting a reasonable investigation.” The information about aspects of Wiggins’ background that his attorneys did have, said the court, triggered an obligation to look further. The 4th Circuit reversed. It contrasted the complete failure of Michael Wayne Williams’ attorney to investigate mitigating evidence with the fact that Wiggins’ attorneys knew some details of their client’s background. Those details, the circuit held, were sufficient for Wiggins’ attorneys to make an informed, strategic choice to challenge their client’s direct responsibility for the murder rather than to present a full mitigation effort. When the high court agreed to review the 4th Circuit ruling, some death penalty litigators were skeptical of what the justices would do. The Rehnquist Court, they knew, was not one to write broad opinions favoring death row inmates’ claims. Verrilli, who has handled the case for a decade and will stay with Wiggins for a new sentencing hearing, admitted that he wrote his petition “narrowly” because he thought that was in his client’s best interests. “We were trying very hard as litigators to position the case in a way that the court could rule narrowly,” he recalled. “As I read the opinion, they opted to rule broadly.” Writing for the majority, O’Connor, who also wrote Strickland in 1984, said Wiggins’ counsel’s decision not to look beyond a presentencing report and certain social services records fell short of professional standards in Maryland in 1989. She noted that public defenders had funds available to commission a social history report, but Wiggins’ counsel did not use them. She also found their conduct fell short of the standards for capital defense work set by the American Bar Association. Strickland, O’Connor said, does not require attorneys to investigate every conceivable line of mitigating evidence and does not require them to present mitigating evidence in every case. But a decision not to investigate, she said, “must be directly assessed for reasonableness in all the circumstances.” “I think Wiggins is extremely important, almost more important than you can glean from the opinion,” said death penalty scholar James Liebman of Columbia University Law School. “There has been this broad set of courts-both federal and state-that has reached the conclusion under Strickland that if the trial attorney gave a strategic or tactical explanation for failing to do something, that was essentially impenetrable. “The Supreme Court says very explicitly that no strategic judgment will trump the basic Strickland test, so any strategic judgment on which you are relying also has to be rational. It removes a very important barrier.” Capital litigator Eric Freedman of Hofstra University School of Law agreed, adding, “I do expect to see lower courts interpreting Strickland in light of Wiggins, and obviously they are at serious risk of being reversed if they don’t. That’s the realistic outlook.” ABA guidelines’ importance Freedman noted O’Connor’s reliance on the ABA guidelines. A new set that came out in February, he said, are more stringent and require the use of mitigation specialists. “O’Connor is correctly positioning the court in the center of where the consensus is,” said Freedman who serves as the ABA’s reporter on the guidelines. “These new guidelines passed with well over 90% of the vote-a higher percentage on the floor of the House of Delegates than a pay raise for judges.” Wiggins‘ potential impact is broad also because of the facts of his case, said Freedman and others. “One of the things that is encouraging about this case is it’s precisely the sort of routine level of ineffective assistance in capital cases rather than the headline-grabbing type of case,” Freedman said. “The statistical norm is what’s illustrated here: the lawyers simply don’t go far enough, dig hard enough, pursue leads aggressively enough to come up with the total picture that’s critical to saving the client’s life.” Not everyone reads Wiggins so broadly. Kent Scheidegger of the Criminal Justice Legal Foundation, which filed an amicus brief supporting Maryland in the case, called the decision “pretty fact-intensive.” “It is still the law that if the lawyer has the evidence, evaluates it and decides not to use it, that is close to unreviewable,” he said. He noted that the high court last term also rejected an ineffective-assistance claim in a death case in which the 9th Circuit granted relief. “If you consider them as a pair, you can see the court is telling circuits not to wander off too far in either direction,” Scheidegger said. But Bruck countered, “It’s true every ineffectiveness case is fact-laden, but I sense there is a shift that has taken place with Wiggins. The growing recognition that this country has failed to provide fair trials in so many capital cases has reached the Supreme Court.” Wiggins is also important as a habeas case, said habeas scholar Ira Robbins of American University Washington College of Law. In the 1996 Antiterrorism and Effective Death Penalty Act, Congress crafted a standard for federal review of state prisoners’ claims that is extremely deferential to state courts in order to hasten post-conviction appeals. That standard is a major obstacle to prisoners-death row or otherwise-who want federal courts to hear their claims. Despite that high bar, the Supreme Court in Williams, Wiggins and another death case last term involving race-based peremptory jury challenges, has granted habeas relief, Robbins noted. “They are soberingly giving scrutiny to death cases from states that have not gotten this level of federal review in the past,” he said. “Clearly what’s going on, and maybe contrary to what Congress intended, they have to allow some room, some nondeference, some true federal review, in order for them to pierce the veil of these death penalty judgments.” Coyle’s e-mail address is [email protected].

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