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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 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 grounds 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. “The message is being heard by the lower courts,” says Robin Maher, director of the American Bar Association Death Penalty Representation Project. “States are going to have to make up their mind whether they want to fund capital defense efforts appropriately, or spend all their money retrying cases.” Recently, the New Orleans-based 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, 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 Richmond-based court to re-examine a Virginia death penalty case, Walker v. True, No. 03-6300, in light of Wiggins. David Ogden, a partner at D.C.’s Wilmer, Cutler & Pickering who is handling the Walker case pro bono, says 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,” says Ogden. “I think the Supreme Court wants Wiggins to be taken seriously.” Ogden says 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. “We’ve known the importance of mitigation evidence for a long time,” says the ABA’s Maher. “But having the Supreme Court make a definitive statement that there are consequences for failing to do mitigation properly will help.” 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,” says 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 reversals of death sentences, 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, though, 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,” says 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.” ‘NEW ATMOSPHERE’ 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,” says Fred Moss, a law professor who teaches criminal law 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 says. “I think they’ve built up intellectual calluses on habeas corpus cases.” The decisions Wiggins gave rise to are long overdue, he says. For Douglas Alan Roberts, who was sentenced to death for kidnapping, robbing and murdering a man near San Antonio in 1996, Wiggins means he may be given an opportunity at a new trial that he might not otherwise have had, says Andrew Hammel, a solo practitioner in Kerrville, Texas, who represent Roberts. On Jan. 9, the 5th Circuit granted Roberts a certificate of appealability to pursue an ineffective-assistance claim in Roberts v. Dretke. “I personally think the Wiggins decision, as well as the Williams decision from 2000, were two very loud shots across the bow,” Hammel says. In the 2000 decision Williams v. Taylor, the Supreme Court found that a Virginia death row inmate’s constitutional right to effective counsel was violated. The Court ruled that the result of the sentencing phase of Terry Williams’ trial might have been different if his attorney had presented and explained mitigating evidence, including information about Williams’ abusive childhood and “borderline” mental retardation. “The message was meant for the 4th and 5th Circuits in particular, which had routinely tolerated a level of representation that would certainly not have been tolerated by many other federal circuits,” Hammel says. Stephen Bright, director of the Southern Center for Human Rights in Atlanta, agrees with Hammel that the Supreme Court likely had the 4th and 5th circuits in mind, but adds that its reverberations will be felt more broadly. “Wiggins should have a dramatic impact, because there are hundreds of cases just like it,” says Bright. “This is the kind of representation you get in Virginia, Alabama, Louisiana, and Mississippi, among others. But the Court is finally saying to everyone that there are some fundamental duties lawyers have towards their clients.” In fact, the Cincinnati-based 6th Circuit, in a Dec. 29 opinion, found lapses in lawyers’ performance in Ohio, too. In Hamblin v. Mitchell, the 6th Circuit held that lawyers for defendant David Hamblin, inexperienced in capital cases, focused solely on the guilt-phase trial itself and did no preparation for the sentencing proceedings — despite the existence of a “large body of mitigating evidence,” including a history of psychological problems. “This complete failure to investigate simply cannot be condoned and constitutes a clear constitutional violation,” the 6th Circuit panel said. The Hamblin decision also said that Wiggins “adds clarity, detail and content” to Strickland by virtually codifying the ABA standards as the benchmark for defining professional norms of representation. DEATH IN THE LONE STAR STATE The three cases in which the 5th Circuit has either issued a certificate of appealability or reversed the lower court judgment because of last June’s Supreme Court opinion in Wiggins involved fairly standard ineffective-assistance claims. In an Aug. 13 decision in Guy v. Cockrell, the 5th Circuit reversed and remanded Joe Lee Guy’s death penalty conviction to the trial court to determine whether the investigator hired by the defense to interview mitigation witnesses had a conflict of interest. The 5th Circuit noted that the investigator was named the sole beneficiary of the victim’s mother’s estate six months after the trial. And on Dec. 23, in Lewis v. Dretke, the 5th Circuit reversed a lower court ruling that Andre Anthony Lewis’ trial attorneys were not ineffective because they did not discover information from Lewis’ family members about his allegedly abusive childhood. In that case, Lewis’ three sisters testified at his habeas proceeding that their father had regularly beat all of them and that the children lived in constant fear of their father’s rages, according to the 5th Circuit opinion. The 5th Circuit ordered that Lewis receive a new sentencing-phase trial. In Roberts v. Dretke, decided Jan. 9, the 5th Circuit granted Douglas Alan Roberts a certificate of appealability because his trial attorney “fail[ed] to properly develop evidence of Roberts’ mental illness” and “fail[ed] to make adequate use of his court appointed psychologist,” according to the opinion. Phillip Wischkaemper, a Lubbock, Texas, attorney who represents Joe Lee Guy and also serves as the capital assistance attorney for the Texas Criminal Defense Lawyers Association, says there likely are plenty more viable Wiggins claims from Texas’ 450-plus death-row inmates. “I feel somewhat safe saying that the majority of those didn’t have the kind of mitigation investigation that the Supreme Court envisioned in Wiggins.” Some prosecutors say there is little they can do to control how defense attorneys present their cases at trial. But Wiggins may force prosecutors to do just that, says John Bradley, Williamson County’s district attorney. “What the appellate courts will end up doing is forcing the prosecutors to get into the defense attorneys’ business,” Bradley says. “What I really object to is the appellate courts making policy decisions about what is and is not the best defense in a capital murder case,” Bradley says. “And if they’re going to do that, let’s start holding the hearing on what strategy the defense lawyer is making before we even hold the trial. Wiggins also puts criminal-defense attorneys in a Catch-22 situation, defense attorneys say. To develop mitigation evidence, they may be forced to call family members to testify about issues such as a defendant’s abusive childhood. But those same witnesses may open the door for the prosecution to ask the family members about violent tendencies the defendant may have displayed as a child and throughout his life. In addition, some defendants are reluctant to let their family members be interviewed about their childhood because of the pain it may cause. But that shouldn’t affect a lawyer’s trial strategy, says Randy Schaffer, a criminal defense lawyer in Houston. “It’s the lawyer’s decision on how to conduct the litigation,” Schaffer says. “And I see a lot of cases where lawyers defer to clients on what questions to ask and what witnesses to call.” Schaffer adds that “it’s totally inappropriate to do [that] in a death penalty case where the [client] doesn’t have the knowledge to make those kind of decisions. It’s like a patient directing a doctor on how to conduct a surgery.” The Wiggins ruling shows signs of boosting a cottage industry of “mitigation specialists” — social workers and other professionals who join capital defense teams for the sole purpose of gathering evidence about a defendant’s troubled past to present to a jury if the defendant is found guilty. “There’s a tremendous shortage of people qualified to do this work,” says David Neal of the Fair Trial Initiative, a Durham, N.C., nonprofit group that hopes to train these specialists. To truly meet the standards of Wiggins, death penalty experts say, these specialists should be part of the defense team at the very beginning — long before the trial begins, much less the sentencing phase. University of Pittsburgh School of Law professor Welsh White says there are “terrible attorneys, abysmal attorneys” who ignore mitigation until too late, in the belief that they can prove their client innocent, or convince the jury at sentencing that there is “lingering doubt” about guilt. “After Wiggins, that is not acceptable,” says White. “You’ve got to do the investigation, and that is a very positive step.” John Council is a senior reporter at Texas Lawyer , an American Lawyer Media weekly newspaper, where a version of this article first appeared.

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