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Ira Mickenberg is an appellate defense attorney who practices in Saratoga Springs, N.Y. The 2002-2003 term will be remembered for producing two decisions that will significantly change the way criminal law is practiced. Of the two, the case that got less popular attention, Wiggins v. Smith, 123 S. Ct. 2527 (2003), will have the most profound effect on the trial of death penalty cases. It is a sad fact that many indigent defendants facing capital charges are provided dreadful representation at trial. In particular, many capital defendants get no meaningful support at the sentencing phase, when the jury must decide whether to impose the death penalty or life imprisonment. For this reason, claims of ineffective assistance of counsel-especially ineffectiveness at the penalty phase-are among the most common issues raised in habeas corpus petitions by inmates on death row. Since 1984, the standard for evaluating claims of ineffective assistance of counsel has been governed by Strickland v. Washington, 466 U.S. 668 (1984). Under Strickland, a claim of ineffective counsel will prevail only if the petitioner can show two things: first, that his lawyer provided constitutionally ineffective representation, meaning that the lawyer’s performance “fell below an objective standard of reasonableness”; and, second, that the petitioner was actually prejudiced by the lawyer’s poor performance. A crucial limitation on the first prong of Strickland is that if the lawyer’s failure was the result of a reasonable, but unsuccessful, strategy, the ineffectiveness claim fails. Before the penalty phase in Wiggins, the defense counsel requested that the sentencing be bifurcated, so they could first try to convince the jury that Kevin Wiggins was not directly responsible for the killing, a prerequisite for execution in Maryland. If that argument failed, the lawyers could then try to convince the jurors that mitigating factors about Wiggins’ life mandated a life sentence. The court denied this request and held that the penalty phase would be one proceeding, at which all claims must be raised. Wiggins’ counsel chose to challenge his responsibility for the crime, while only doing a cursory investigation of mitigating evidence. The courts that later reviewed the case agreed that, had the lawyers done a meaningful investigation into Wiggins’ personal history, they would have found significant mitigation. Wiggins was sentenced to death. On appeal, and later in habeas corpus, he claimed that his trial lawyers were constitutionally ineffective for failing to investigate and present mitigating evidence. During the state habeas corpus hearing, the trial judge noted that, “[n]ot to do a social history, 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.” Nonetheless, the trial court denied the petition, holding that the counsel’s decision to forgo mitigation was a trial strategy, and not constitutional ineffectiveness. On federal habeas corpus, the district court reversed, but the 4th U.S. Circuit Court of Appeals reinstated the Maryland court’s finding that the failure to present mitigating evidence was not ineffectiveness, but a reasonable strategy. The Supreme Court reversed. In doing so, the court held that the 4th Circuit was wrong to focus just on whether the decision not to present mitigating evidence was reasonable. The proper focus should be on whether the lawyers’ investigation of (or failure to investigate) mitigating evidence, which formed the basis of their decision not to present mitigation, was reasonable. After all, if counsel unreasonably failed to investigate, their later decision not to present a case must also be unreasonable, because it was the direct result of their first mistake. The impact of ‘Wiggins’ Wiggins will have a profound effect on the way capital sentences are reviewed. It will no longer be possible for courts to dismiss claims of ineffectiveness lightly by characterizing the failure to present mitigation as a “strategy.” Courts must now examine the trial counsel’s failure to investigate mitigating evidence, and to determine whether that failure was itself reasonable. In the short term, this will result in more reversals. In the long run, it may result in fewer incompetent investigations of mitigating evidence. The 2003 case that received by far the most public notice was Lawrence v. Texas, 123 S. Ct. 2472 (2003), in which the court declared unconstitutional a Texas law that made it a crime to engage in homosexual acts. In doing so, the court overruled its 1986 decision in Bowers v. Hardwick, 478 U.S. 186 (1986). The most striking aspect of Lawrence is the definitiveness with which the majority rejected both the reasoning and the holding of Bowers. The Bowers court had defined the issue as being whether homosexuals have a constitutional right to engage in certain sexual practices. It then answered in the negative. In Lawrence, the court rejected the Bowers formulation of the issue, and said that the real question was not about sexual acts, but was whether the state can “control a personal relationship that, whether or not entitled to formal recognition in the law, is within the liberty of persons to choose without being punished as criminals.” Thus, the court defined the issue as one of personal liberty and privacy under the due process clause of the Fifth and 14th amendments. The court was so vehement about this point that it explicitly refused to decide the case on equal protection grounds, noting that, if it did so, “some might question whether a prohibition would be valid if drawn differently, say, to prohibit the conduct both between same-sex and different-sex participants.” The court then concluded that “[w]hen sexuality finds overt expression in intimate conduct with another person, the conduct can be but one element in a personal bond that is more enduring. The liberty protected by the Constitution allows homosexual persons the right to make this choice.” In this fashion, Bowers joined the list of cases that, to the court, once made sense, but with the passage of time, became an embarrassment. The other notable feature of Lawrence was the tone of the dissent. Justice Antonin Scalia characterized the overruling of Bowers as “a massive disruption of the current social order.” Scalia continued by castigating the majority for having “largely signed on to the so-called homosexual agenda,” and for having “taken sides in the culture war.” At various points, the dissent raised the specter of Americans being forced to accept homosexuals as “partners in their businesses, as scoutmasters for their children, as teachers in their children’s schools, or as boarders in their home,” and of a day when “criminal law against fornication, bigamy, adultery, adult incest, bestiality, and obscenity” must all be overturned. This may be the first instance of a Supreme Court opinion that sounds more like an interview tape for a right-wing radio show than a judicial decision. Upholding three strikes In Lockyer v. Andrade, 123 S. Ct. 1166 (2003), the court upheld California’s three strikes sentencing law. In doing so, it signaled state legislatures that virtually any prison sentence-enhancement law aimed at career felons will be upheld against Eighth Amendment challenges. California’s three strikes law is harsher than that of most other states, in that it permits any felony, even one that did not involve violence, to trigger a life sentence for someone who has previously been convicted of two serious felonies. Leandro Andrade was convicted of shoplifting about $150 worth of videotapes. Because he had three prior burglary convictions, he was eligible for sentencing under the three strikes provision. The sentencing judge imposed two consecutive terms of 25 years to life. On appeal, and later, in federal habeas corpus, Andrade claimed that a life sentence for shoplifting was so disproportionately severe that it violated the Eighth Amendment ban on cruel and unusual punishment. Andrade lost his appeals and post-conviction petitions in the state courts. The case ultimately reached the Supreme Court after the 9th Circuit granted Andrade’s federal habeas corpus petition. The Supreme Court reversed, and upheld the constitutionality of the three strikes law. Much of the court’s decision was rooted in the 1996 changes Congress made to the federal habeas corpus statute, generally referred to as the Anti-Terrorism and Effective Death Penalty Act. Since 1996, a petitioner who shows that the state court was wrong in its interpretation of the U.S. Constitution does not necessarily win his case. In order to prevail, he must also show that the state court decision was “an unreasonable application of clearly established Federal law, as determined by the Supreme Court.” 18 U.S.C. 2254(d)(1). Thus, habeas petitioners are in the odd position of having to prove not just that the state court was wrong, but that it was unreasonably wrong. A distinction only a lawyer could love. The court admitted that when considering Eighth Amendment disproportionality claims, “our precedents in this area have not been a model of clarity.” After analyzing the conflicting precedents in the area, the court concluded that the California courts did not unreasonably interpret the federal Constitution when they upheld the law. Consequently, Andrade’s Eighth Amendment claim had to be rejected. This decision will have two long-term effects. First, state sentence-enhancement schemes, regardless of how harsh, will almost always be upheld against constitutional challenge. If someone can get a life sentence for stealing a few videotapes, it is difficult to imagine what crime would be too insignificant to merit three strikes treatment. Second, federal habeas corpus may now be useless as a tool for bringing Eighth Amendment proportionality challenges to state sentencing statutes. If Supreme Court precedent is too unclear to allow Andrade to satisfy the “unreasonableness” standard of the Anti-Terrorism and Effective Death Penalty Act, it is difficult to imagine how it will become clearer or more favorable in the future.

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