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For years, claims of “ineffective assistance of counsel” were routinely attached to death penalty appeals�and just as routinely rejected. Then last June, the U.S. Supreme Court handed down Wiggins v. Smith. By a 7-2 vote, the court found that a defense lawyer’s failure to investigate and present mitigating evidence about the defendant at sentencing amounted to a violation of the Sixth Amendment right to counsel. Now, what was once a boilerplate ground for appeal has gained new bounce. Though the record is mixed, lower courts in the months since Wiggins have begun to take notice, reversing or reconsidering death sentences based on claims of ineffective assistance. Over time, some say, the reversals may trigger fundamental changes in death penalty representation. Message is heard “The message is being heard by the lower courts,” said Robin Maher, director of the American Bar Association (ABA) Death Penalty Representation Project. “States are going to have to make up their minds whether they want to fund capital defense efforts appropriately, or spend all their money retrying cases.” Recently, the 5th U.S. Circuit Court of Appeals granted one certificate of appealability based on Wiggins, remanded a case to the trial court for an evidentiary hearing, and ordered one outright reversal of a Texas inmate’s death sentence. On the other hand, the 4th Circuit�generally considered to be, along with the 5th Circuit, one of the most conservative federal appeals courts�has rejected at least three appeals that sought reconsideration on Wiggins grounds. Last year’s Supreme Court opinion arose from a 4th Circuit decision, and some observers read the ruling as a signal that the 4th Circuit should rethink its approach to ineffective-assistance claims. If so, the Supreme Court reiterated that message last November when it told the 4th Circuit to re-examine a Virginia death penalty case, Walker v. True, No. 03-6300, in light of Wiggins. David Ogden, a partner at Washington’s Wilmer, Cutler & Pickering who is handling the Walker case pro bono, said it was significant that the high court cited Wiggins alone in remanding the case-not the numerous other appeal issues he had raised. “The 4th Circuit had gone off on the wrong track in this area,” he said. “I think the Supreme Court wants Wiggins to be taken seriously.” Ogden said that defense counsel in the trial of his client Darick Walker did not obtain school and other records that would have shown mental retardation “until the last minute” before sentencing, and the evidence was never shown to the jury anyway. The 4th Circuit denied Walker’s appeal before Wiggins was handed down. According to defense lawyers, the Supreme Court in Wiggins gave much-needed clarity to its 1984 ruling in Strickland v. Washington, which established grounds for claims of ineffective assistance of counsel. Strickland was criticized as too vague to sustain most such post-conviction appeals. Wiggins, while not changing the law dramatically, fortifies the arguments of many condemned prisoners. The majority opinion, written by Justice Sandra Day O’Connor, invokes in detail the ABA’s standards for death penalty representation, and requires that trial attorneys for death penalty defendants conduct a “reasonable investigation” into mitigation evidence. Critics of Wiggins say it only creates new grounds for delay. “We’re getting to the point where, if the defendant was looking skyward before the murder, and his lawyer doesn’t hire an astrophysicist to be part of the team, it will be deemed ineffective assistance on appeal,” said Michael Rushford, president of the Criminal Justice Legal Foundation. “We predicted Wiggins would create mischief, and it has.” Rushford also predicts that if the post- Wiggins trend continues with more death sentence reversals, the Supreme Court will step in and narrow its application. “It always happens. The court opens the door a crack, and all the bees come in the house. Then five years later, they close it again.” Others assert that Wiggins may represent a new strategy for the Supreme Court, which has made itself the steward of death penalty procedures since reinstating capital punishment in 1976. “The Supreme Court may be getting a little wiser in finding ways to correct unfairness in the death penalty,” said University of Virginia School of Law Professor Stephen Smith, a former clerk to Justice Clarence Thomas. “Instead of imposing rules that were doomed to failure, the court is ratcheting up the standards of representation.” Criminal law experts say the message has already come across, at least in the 5th Circuit. “I think what we’ve got is a new atmosphere [at the 5th Circuit], especially surrounding the death penalty,” said Fred Moss, a criminal law professor at Southern Methodist University Dedman School of Law. “The federal courts are inundated with habeas corpus writs. And it’s hard to sort the wheat from the chaff,” Moss said. “I think they’ve built up intellectual calluses on habeas corpus cases.” The decisions Wiggins gave rise to are long overdue, he said.

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