The Duty to Investigate Before D

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					                       The Duty to Investigate Before
                      Deciding Upon a Defense Strategy

               The Lessons of Wiggins v. Smith for All Criminal Cases

                                     Michael Mears, Director
                          The Georgia Public Defender Standards Council
                                  104 Marietta Street, Suite 200
                                     Atlanta, Georgia 30303


        On June 26, 2003, the United States Supreme Court issued its opinion in the death penalty

case of Wiggins v. Smith1 and addressed a significant Sixth Amendment issue in death penalty

litigation, that is whether a defendant’s attorneys unreasonably decided not to present mitigating

information about his background without conducting an adequate investigation to gather the facts.

At the vortex of this issue was the question of whether “strategic” decisions can be made before

reasonable sentencing phase investigation has been conducted. This article suggests that the same

principles apply to all phases of criminal cases as well. The level of diligence required of a death

penalty attorney in preparing for the sentencing phase of a death penalty case is also applicable to

defendants in all criminal cases where there is criminal trial contemplated.

        For the past thirty years, courts across the country have struggled with the question of how

to evaluate the performance of defense attorneys in criminal cases. All courts have agreed that the

most important constitutional safeguard available to defendants is the right to have competent

effective counsel. The diligence and vigor of defense counsel determine whether facts that may

show the defendant's innocence are uncovered and whether the legal rules that channel sentencing

discretion are fairly applied. However, there is no safeguard more dependent upon defense counsel's
faithful discharge of his office than the requirement that “punishment should be directly related to

the personal culpability of the criminal defendant.”2 It is up to the lawyer for the accused to expose

the “compassionate or mitigating factors stemming from the diverse frailties of humankind.”3 Unless

that occurs, a death sentence is not a “reasoned moral response” to the offense and the offender.4

       Decades of experience have shown that “in the context of a capital sentencing proceeding,

defense counsel has the obligation to conduct a reasonably substantial, independent investigation

into potential mitigating circumstances.”5 Without such an investigation, facts that are crucial to

understanding the offender and to judging his blameworthiness will remain hidden.6 While there is

room for professional judgment about what information to present to the jury and how to present it

most effectively, a broad investigation of the defendant's life is a precondition of those professional

judgments. Otherwise, counsel's failure to investigate vitiates the jury's ability to render and the

judiciary's ability to ensure death sentences that are morally defensible within the framework of the

Supreme Court's precedents.


       On September 17, 1988, the body of seventy-seven year-old Florence Lacs was found

floating in a bathtub in her apartment in Woodlawn, Maryland. She was not wearing underwear and

her skirt had been raised to her waist. Ms. Lacs had last been seen alive on the afternoon of

September 15, wearing the same outfit she was wearing when her body was found. Quantities of a

household cleaner and bug spray were found in the water. An autopsy showed that Ms. Lacs had

minor trauma injuries that were consistent with a pre-death struggle and the cause of death was

drowning. There were no signs of forced entry, but the apartment had been ransacked.

       At the time of Ms. Lacs’s murder Kevin Wiggins was employed by a construction firm doing

work in Lacs's apartment building. On September 15, Mr. Wiggins completed his daily work
assignments shortly after 4:00 p.m. At approximately 5:00 p.m., he was seen having a conversation

with Ms. Lacs outside her apartment. At approximately 7:45 p.m., Mr. Wiggins arrived at his

girlfriend's house in Ms. Lacs's car. He and his girlfriend then went on a shopping spree, using Ms.

Lacs's credit cards. Several days later, while riding in Ms. Lacs's car, Mr. Wiggins was arrested and

charged with capital murder and related offenses. Mr. Wiggins waived a jury trial as to guilt or

innocence and, after a bench trial, he was found guilty of all charges. Using Maryland’s death penalty

procedures, Mr. Wiggins chose to be sentenced by a jury.


        Under the capital sentencing scheme in effect in Maryland at the time of Mr. Wiggins’s

sentencing, a defendant was not eligible for the death penalty unless the State proved beyond a

reasonable doubt at trial that the defendant was guilty of murder in the first degree (which includes

felony murder) and then proved beyond a reasonable doubt at sentencing that the defendant was a

principal in the first degree. A principle in the first degree is defined as the person who actually

carries out the murder. Before imposing the death penalty, the sentencer was also required to find

that there was at least one aggravating circumstance and that the aggravating circumstances

outweighed any mitigating circumstances. Before sentencing, Mr. Wiggins’s attorneys,7 two public

defenders from Baltimore, filed a motion for “bifurcation” requesting that the jury first decide

whether Wiggins was a principal in the first degree. Then, if the jury found that he was, they would

decide in a separate proceeding what aggravating and mitigating circumstances existed and whether

the former outweighed the latter.

        Mr. Wiggins’ attorneys made this request because they felt there was a risk that the mitigating

evidence they intended to present might make the jury more likely to find that he was a principal.

The mitigating evidence was the testimony of a psychologist who had evaluated Mr. Wiggins and
concluded that he had an IQ of 79 and a personality disorder. The trial court denied the motion and

the case proceeded to the sentencing phase of the trial before twelve jurors who heard no evidence

of mental retardation or mental illness. Instead, as they had at the trial's guilt phase, Mr. Wiggins’s

attorneys emphasized the lack of forensic evidence that placed him in the victim’s apartment. They

highlighted conflicting testimony about the time the victim was last known to be alive and they

presented expert testimony to contradict the State's evidence about the time of death. In

summation, they argued that the State had not proved beyond a reasonable doubt that it was Mr.

Wiggins who “personally put [the victim] in the water” and “personally held her there. . . until she

drowned,” and that it was “at least reasonably possible, if not highly probable, that Florence Lacs

died at the hands of someone other than [Wiggins].” The jury unanimously found: that Mr. Wiggins

was a principal in the first degree (the fact that made him eligible for the death penalty); that the

murder was committed in the course of robbing the victim (a statutory aggravating factor); and that

Mr. Wiggins had not previously been convicted of a crime of violence (a statutory mitigating factor

to which the parties had stipulated).

        The jury then unanimously found that the aggravating factors outweighed any mitigating

factors and sentenced Mr. Wiggins to death. He appealed his death sentence to the Maryland Court

of Appeals and after denial of all requests for relief through direct appeals, he filed a habeas corpus

petition alleging that his attorneys provided ineffective assistance of counsel. After being denied

relief by the Maryland Court of Appeals and by the Fourth District Court of Appeals on the basis of

his habeas petitions, the United States Supreme Court granted certiorari and reversed the lower

courts’ decisions.8

        In 1976, the United States Supreme Court issued five decisions evaluating the

constitutionality of death penalty statutes enacted by the states: three upholding the statutes9 and

two striking down the statutes as constitutionally infirm.10 Ten years later, the Supreme Court

summarized those decisions and distinguished the laws that satisfied constitutional mandates from

those that did not:

                In the three cases upholding the guided-discretion statutes, the
                opinions emphasized the fact that those capital schemes permitted
                the sentencing authority to consider relevant mitigating circumstances
                pertaining to the offense and a range of factors about the defendant
                as an individual. . . In the two cases striking down as
                unconstitutional mandatory capital-sentencing statutes, the opinions
                stressed that one of the fatal flaws in those sentencing procedures
                was their failure to permit presentation of mitigating circumstances
                for the consideration of the sentencing authority.11

        The Court, while holding unconstitutional a Nevada statute mandating a capital sentence to

any life term inmate convicted of murder, focused on the unique nature of mitigating evidence and

the constitutional indispensability of access to that evidence. A process that accords no significance

to the circumstances of the particular offense or mitigating factors stemming from the diverse

frailties of humankind fails to treat all persons convicted of a designated offense as uniquely

individual human beings. Rather, they become members of a faceless, undifferentiated mass to be

subjected to the blind infliction of the penalty of death.12

        The principle that individual circumstances of every capital crime and of every capital

defendant must be considered by the sentencer has guided every U.S. Supreme Court ruling on the

constitutionality of a State’s capital sentencing scheme Indeed, a long line of cases has consistently

concluded that a sentencer may not be precluded from considering any “aspect of a defendant's

character or record and any of the circumstances of the offense” and “that a sentencer may not
refuse to consider or be precluded from considering any relevant mitigation.”13


        Kevin Wiggins’ death sentence gave the U.S. Supreme Court an opportunity to revisit and

clarify the standard announced in 1984 in Strickland v. Washington,14 that “[T]he right to effective

counsel, which derives from the right to counsel, guarantees a defendant the assistance “necessary to

ensure that the trial is fair.”15

        In Strickland, the Court began its analysis with the presumption that the defendant received

effective representation and placed the burden on the defendant to prove otherwise. Further, not

only would the defendant have to show that his attorney provided ineffective assistance of counsel,

he would also have to show that but for the errors of his attorneys he would have received a

different result. This has come to be known as the two prong test of Strickland. However, the

Supreme Court made it clear in Strickland that either the government or defense counsel may be

responsible for depriving the accused of the benefit of counsel. Thus, either governmental

stumbling blocks or defense counsel’s ineptitude may undermine defense counsel’s ability to make

strategic and tactical decisions in an independent manner. The Court noted that the basic duties of

an effective lawyer are loyalty, avoidance of conflicts of interest, advocacy (described as the

overarching duty), and consultation and communication with the client. It also noted, “Counsel also

has a duty to bring to bear such skill and knowledge as will render the trial a reliable adversarial

testing process.”16

        The Strickland presumption of effective representation is premised upon a lawyer’s

strategic decision-making to promote his client's best interest. The Court held that strategic

decisions would not be the subject of post-trial scrutiny unless those decisions were professionally
unreasonable. This presumption fails, however, if any of the assumptions underlying it failed. For

example, if a lawyer is burdened by a conflict of interest, the Court can no longer assume that a

lawyer is acting in the best interest of his client.17 Further, an attorney’s decision to undertake, or

not undertake, a particular course of action can be unreasonable if it is an uninformed decision.18

        Prior to Wiggins, the Court had dealt with the issue of uninformed decisions and their

relationship to the presumption of effectiveness. In Kimmel v. Morrison, the defendant’s attorney

failed to file a timely suppression motion because, until the first day of trial, he was unaware of the

search and of the State's intention to introduce inculpatory evidence that resulted from the search.

Counsel was not aware of the search and seizure because he had conducted no pretrial discovery.

Defense counsel’s failure to request discovery was not based on “strategy” but on his mistaken

belief that the State was obliged to take the initiative to turn over all of its inculpatory evidence to

the defense and that the victim’s preferences would determine whether the State proceeded to trial

after an indictment had been returned.19

        The Court noted, “the justifications Morrison's attorney offered for his omission betray a

startling ignorance of the law--or a weak attempt to shift blame for inadequate preparation. Counsel

has a duty to make reasonable investigations or to make a reasonable decision that makes particular

investigations unnecessary.”20 Morrison’s attorney neither investigated nor made a reasonable

decision not to investigate the State's case through discovery. The Court further noted, “Such a

complete lack of pre-trial preparation puts at risk both the defendant's right to an ample opportunity

to meet the case of the prosecution, and the reliability of the adversarial testing process.”21 For the

Strickland presumption to stand, a lawyer’s decisions must be formulated from a reasonable

understanding of the law and the facts. If lawyers’ decisions are based on ignorance, they are neither
reasonable nor strategic.22 Absent a reasonable investigation, lawyers do not have a reasonable

understanding of the facts; consequently, they have no basis upon which to apply their legal skill and



        The Supreme Court has made it clear that it is not enough for a defendant to be allowed to

develop mitigating evidence. Nor is it sufficient for a jury to be allowed to hear about and consider

the concept of mitigating circumstances. Rather, the sentencer must be in a position to consider and

give effect to the mitigating evidence about the individual defendant when deciding whether or not

to impose the death sentence. As the Court explained:

                Penry I did not hold that the mere mention of ‘mitigating
                circumstances’ to a capital sentencing jury satisfies the Eighth
                Amendment. Nor does it stand for the proposition that it is
                constitutionally sufficient to inform the jury that it may ‘consider’
                mitigating circumstances in deciding the appropriate sentence.
                Rather, the key under Penry I is that the jury be able to ‘consider and
                give effect to [a defendant's mitigating] evidence in imposing
                sentence.’ For it is only when the jury is given a ‘vehicle for
                expressing its reasoned moral response’ to that evidence in rendering
                its sentencing decision, ‘that we can be sure that the jury’ has treated
                the defendant as a ‘uniquely individual human being’ and has made a
                reliable determination that death is the appropriate sentence.23

        The American Bar Association’s Performance Standards for Death Penalty Defense Counsel

reflect the professional norms in this area, including that counsel should “conduct independent

investigations . . . immediately upon counsel's entry into the case” and pursue them expeditiously.24

In recognition of the critical nature of mitigation evidence, the America Bar Association’s Guidelines

for Death Penalty Defense Counsel recommend thorough preparation by counsel for the penalty

phase through proper investigation, consultation with the client, analysis of the prosecution's case

and evaluation of all reasonably available evidence in mitigation.25
        Applying the long-line of U.S. Supreme Court decisions previously discussed it is clear that it

is improper to allow defense counsel's ineptitude to prevent the sentencer from hearing, considering,

and giving full effect to the mitigating evidence the defendant has a right to present. The purpose

of the penalty phase is to determine whether the individual defendant, having been found guilty,

deserves to be put to death. The nature of mitigating evidence is fundamentally different from the

evidence sought and developed for the guilt/innocence phase.

        If death penalty defense attorneys do not articulate to the client the right to have mitigation

evidence considered, the scope of that evidence, and the effect that evidence can have, the lawyers

become obstacles to a constitutionally fair sentencing process. Indeed, the fundamental

constitutional right to present mitigating evidence rings hollow unless defense counsel is aware of,

and advises the defendant about, the breadth of mitigating circumstances that is admissible in the

penalty phase. In order to develop evidence that individualizes and humanizes the defendant,

defense counsel must develop a deeper understanding of the defendant's current life history and

character than is usually necessary for the guilt/innocence phase. In an application of this principle,

the Eleventh Circuit Court of Appeals recently upheld a district court’s reversal of a state court that

had postulated that the defendant had no mitigation evidence to present, and therefore the decision

to present none had been strategic. The district court disagreed, pointing out that the defendant’s

“counsel had not done any investigation into the defendant’s background or character, so they did

not know what evidence there might have been to present.”26 The Eleventh Circuit affirmed the

decision of the district court and observed “[C]ounsel's failure to investigate, obtain, or present any

mitigating evidence to the jury, let alone the powerful mitigating evidence of [the defendant]’s

borderline mental retardation, psychiatric disorders, and history of drug and alcohol abuse,
undermines our confidence in [the defendant]’s death sentence.”27 The Eleventh Circuit concluded

that counsel's failure to conduct any mitigation investigation was inherently unreasonable because it

deprived the defendant of his opportunity to humanize himself before the sentencer.28

         The Eleventh Circuit’s reasoning is particularly instructive “[T]he primary purpose of the

penalty phase is to insure that the sentence is individualized by focusing [on] the particularized

characteristics of the defendant. By failing to provide such evidence to the jury, though readily

available, trial counsel’s deficient performance prejudices [the petitioner's] ability to receive an

individualized sentence.” The Court further held that counsel's absolute failure to investigate, obtain,

or present any evidence, let alone the powerful, concrete, and specific mitigating evidence that was

available, prevented the jurors from hearing anything at all about the defendant before them.29

         Kevin Wiggins’s case clearly affirms the principle that death penalty defense counsel may

not sit idly by and then excuse their inaction because they thought that “investigation would be



         An investigation may be adequate for the guilt/innocence phase yet be wholly inadequate for

the penalty phase. In Williams v. Taylor , the United States Supreme Court reaffirmed its ruling that

simply because trial counsel conducted an adequate investigation of the guilt/innocence phase does

not mean that the requirement to investigate for the sentencing phase of a capital trial is satisfied.31

The American Bar Association has long stressed that investigation into mitigation evidence “should

comprise efforts to discover all reasonably available mitigating evidence and evidence to rebut any

aggravating evidence that may be introduced by the prosecutor.” Death penalty defense counsel

should conduct a prompt investigation of the circumstances of the case and explore all avenues
leading to facts relevant to the merits of the case and the penalty in the event of conviction.32

        By implication, this policy encompasses two aspects of investigation: (1) the breadth of the

investigation (what counsel must research); and (2) the depth of the investigation (how far counsel

must research in any particular area). The areas of possible mitigation are numerous, and include

any evidence that tends or may tend to lessen the defendant's moral culpability for the offense or

would otherwise support a sentence less than death.

        As the Court has noted “[I]t is precisely because the punishment should be directly related to

the personal culpability of the defendant that the jury must be allowed to consider and give effect to

mitigating evidence relevant to a defendant's character or record or the circumstances of the

offense.”33 The Court has also held that evidence of a defendant's positive adaptation to prison is

relevant and admissible mitigating evidence even though it does not relate specifically to petitioner's

culpability for the crime he committed.34 Therefore, a reasonable independent pre-trial investigation

of mitigation evidence should examine all areas where reasonable capital defense attorneys generally

search for mitigation evidence and any other areas of which counsel are on special notice in their

particular case.

        Nearly fifteen years ago, the American Bar Association’s 1989 Death Penalty Guidelines,

discussed types of mitigation evidence that counsel should investigate through examination of

records and interviews. Counsel should collect information relevant to the sentencing phase of trial

including, but not limited to: medical history, (mental and physical illness or injury, alcohol and drug

use, birth trauma and developmental delays); educational history (achievement, performance and

behavior); special educational needs (including cognitive limitations and learning disabilities); military

history (type and length of service, conduct, special training); employment and training history
(including skills and performance, and barriers to employability); family and social history (including

physical, sexual or emotional abuse); prior adult and juvenile record; prior correctional experience

(including conduct on parole supervision and in the institution, education or training, and clinical

services); and religious and cultural influences.

           A perfunctory or de minimis investigation into one or all areas that a reasonable attorney

would research does not satisfy the guarantees of the Sixth and Eighth Amendments. Skimming

through a capital defendant's psychosocial history or, as in Kevin Wiggins’s case, childhood social

service records, does not provide the necessary depth of understanding to enable either the lawyers

or the client to make informed strategic decisions regarding the presentation of evidence in the

sentencing phase. Lawyers need to look reasonably deeply into each mitigation area they investigate,

e.g., family, friends, co-workers, school records and medical records. Counsel cannot surrender

simply because their first steps are frustrated, or because they find information they are unlikely to


        Wiggins also reaffirms the principle that a death penalty defense attorney may not rely upon

their own client for all of the available information that could be proffered to convince a jury to

impose a sentence other than death. Nor may counsel fail to conduct an investigation because of

the client's desire not to present mitigating evidence.35 The sole source of mitigating factors cannot

properly be that information which the defendant may volunteer; counsel must make some effort at

independent investigation in order to make a reasoned, informed decision as to their utility. The

Court’s decision in Wiggins also emphasizes the principle that defense counsel cannot rely on the

reluctance of the defendant to present a mental health defense or to testify. The Eleventh Circuit

held that death penalty defense counsel was ineffective for “latching onto” the client’s assertions
that he did not want to call penalty phase witnesses and using that as an excuse for failing to conduct

an investigation sufficient to allow their client to make an informed decision to waive mitigation.36

        Death penalty defense counsel should never underestimate the shame, embarrassment, and

anguish certain mitigation evidence, such as childhood sexual abuse or other traumas, mental

retardation or other developmental or mental disorders, causes defendants. The defendant may have

repressed his memory of these events. In some cases, the defendant may not even comprehend

significance of these events. Even where a defendant is aware of a significant mitigating factor and

can identify it, he may go to great lengths to keep the information hidden and will be reluctant to

divulge it to a lawyer.37

        Many mentally ill defendants sometimes self-medicate with drugs and alcohol, which further

exacerbates their condition. A defendant's perceptions and ability to communicate may be limited by

substance abuse, mental illness, or developmental problems. An additional danger is that counsel,

who are untrained and unadvised in these areas, will not know when or to what extent such a

limitation exists. Thus, counsels’ failure to identify mitigating factors and seek expert advice may

limit the lawyers’ ability to represent their client and may unreasonably restrict the scope of their

investigation. Counsel must therefore rely on sources of information other than the client to obtain

all potentially relevant mitigation evidence.

        The duty to consult one or more experts is often of critical importance. Lawyers are not

equipped to assess a person's intelligence or mental state, although a client's behavior might put

them on notice that these factors are at issue. “Few lawyers possess even a rudimentary

understanding of psychiatry. They, therefore, are wholly unqualified to judge the competency of

their clients.”38 A lawyer is an expert in the law, not in psychiatry, medicine, or social work. In
addition to the special skills and training required to discover mitigation evidence, complex or

apparently conflicting records may need to be explained to the decision-maker by one or more

competent experts. The United States Supreme Court has recognized that “when the State has

made the defendant’s mental condition relevant to his criminal culpability and to the punishment he

might suffer, the assistance of a psychiatrist may well be crucial to the defendant's ability to marshal

his defense.”39 It is important for defense counsel to secure expert advice for another reason: when

the case is one in which the death penalty will be sought, the prosecution regularly calls experts. The

penalty phase, no less than a trial, is an adversary proceeding. Lawyers must be prepared to meet the

prosecutor's evidence as well as plead on their client’s behalf.


        In Strickland, the Court recognized that the function of codes of ethical conduct is to

enforce counsel's adherence to their basic duties: loyalty, avoidance of conflicts of interest, advocacy,

consultation and communication with the client, and skill and knowledge.40 The ethical obligation of

a lawyer in a capital case with respect to mitigation issues is no different from the ethical obligation

all lawyers have to premise informed strategic decision-making upon an adequate investigation into

the law and facts sufficient to make informed decisions. This obligation is reflected in the American

Bar Association's Model Rules of Professional Conduct and every State's code of ethics, which

uniformly require adequate and reasonable investigation in order for a lawyer to provide competent

and diligent counsel.41

        A lawyer violates his duties of providing competent and diligent counsel when he fails to

prepare adequately and fails to inquire into, or suitably evaluate, the factual elements of the case

before him.42 When courts evaluate claims of attorney incompetence or lack of diligence, they look
to two things: (1) what is at stake, and (2) whether a lawyer reached a tactical decision based on the

facts and the law, or whether he merely surmised that a particular course of action should be

undertaken.43 Although the duties to provide competent and diligent representation are distinct from

the duty to communicate, a lawyer cannot fulfill the duty to communicate with his client if he has

not first been competent and diligent in the investigation of both phases of the case.


        The Wiggins decision is not just a guidepost for the defense attorney, it is a mandatory road

map. Whether a case is a death penalty case, armed robbery, kidnapping, aggravated assault, etc.

someone’s liberty and possibly their life is at stake. Whether an investigation reveals evidence to be

used to mitigate punishment or to lessen or negate the defendant’s participation in a crime, the

defendant is entitled to have that investigation conducted in a meaningful way. Kevin Wiggins’s

social service records clearly provided an insight and a realization that a powerful case in mitigation

was potentially available. Defense counsel should have developed that case prior to making

definitive judgments about how best to defend Wiggins at sentencing. The decision not to complete

the investigation into all possible mitigating evidence in the social history of Kevin Wiggins could

not be justified by a decision to focus on a guilt/ innocence phase defense. Up until the day before

the sentencing hearing, Wiggins’s lawyers had intended to put on a mitigation case if their

bifurcation motion had been granted. Whether that motion had been granted or denied, Wiggins’s

lawyers were in no position either to make a powerful mitigation case or to decide whether to do so.

The tactical choice by Wiggins’s lawyers to “retry the factual case” was an uninformed decision and

therefore constituted ineffective assistance of counsel.

        Justice Stevens, in his opinion in Strickland, noted that the “purpose of the effective
assistance guarantee of the Sixth Amendment is not to improve the quality of legal representation,

although that is a goal of considerable importance to the legal system. The purpose is simply to

ensure that criminal defendants receive a fair trial.”44 The very foundation of this nation depends

upon the belief that everything our government does is done fairly. The legal profession, unlike any

other profession, has been an integral part of the constitutional framework which was devised to

insure that our system of justice is fair. The United States Supreme Court’s decision in Wiggins v.

Smith reaffirms that historical role and demands that defense attorneys keep faith with the Sixth

Amendment’s promise of fairness.

                                           END NOTES

1. For background facts and information relating to Kevin Wiggins’s case, this paper has
substantially relied upon the Briefs of the Petitioner filed by Donald B. Verrilli, Jr., Ian Heath
Gershengorn, Michael B. DeSanctis, Amy L. Tenney, Jenner & Block, LLC; the Brief of Amici
Curiae of the National Association of Social Workers and the National Association of Black
Social Workers in Support of Petitioner Thomas C. Goldstein, Amy Howe, (Counsel of Record),
Goldstein & Howe, P.C.; and the briefs for the National Association of Criminal Defense
Lawyers, Maryland Criminal Defense Attorneys’ Association and the National Legal Aid and
Defender Association as Amici Curiae in Support of Petitioner Lisa B. Kemler, Larry Allen
Nathans, Bennett & Nathans LLP, David A. Reiser, Counsel of Record, Eleanor H. Smith,
Zuckerman Spaeder LLP. The paper has also made use of the transcript of the oral arguments
before the United States Supreme Court Transcribed by Alderson Reporting Company, Inc.
March 24, 2003, Monday, Washington, D.C., 2003 U.S. Trans Lexis 29. A debt is owed to all of
these attorneys for their contributions to the advancement of the law in death penalty litigation.

2. Penry v. Lynaugh, 492 U.S. 302, 327 (1989)

3. Woodson v. North Carolina, 428 U.S. 280, 304 (1976).

4. Penry v. Johnson, 532 U.S. 782, 121 S.Ct. 1910, 1920 (2001).

5. Neal v. Puckett, 286 F.3d 230, 236-37 (5th Cir. 2002) (en banc).

6. See e.g., Williams v. Taylor, 529 U.S. at 398-99; id. at 415-16 (O'Connor, J., concurring)

7. Before the trial, lead counsel had taken a new full-time job in another county, spent only "a
day a week or so" attending to his former responsibilities, and left it to his co-counsel to do
"most of the work." Here, the attorney left in charge had previously worked on one or two felony
jury trials, had never before worked on a capital trial, and was "frankly overwhelmed" as the trial
date approached. (Petitioner’s brief at page 52.)

8. See Brief of Respondents and Brief of Petitioner, Wiggins v. Smith, 539 U.S. ____, 2003 U.S.
Lexis 5014 (2003).

9. Gregg v. Georgia, 428 U.S. 153, 197, 206 (1976); Proffitt v. Florida, 428 U.S. 242, 251-52
(1976); Jurek v. Texas, 428 U.S. 262, 270-71 (1976).

10. Woodson v. North Carolina, 428 U.S. 280, 303-05 (1976); [Stanislaus] Roberts v. Louisiana,
428 U.S. 325, 333-34 (1976).

11. Sumner v. Shuman,483 U.S. 66, 74 (1987).

12. Id. at 74-75 (quoting Woodson v. North Carolina, 428 U.S. 280, 304 (1976)).

13. See Mills v. Maryland, 486 U.S. 367 (1988)(jury instructions could not serve to preclude
jurors from considering mitigating evidence; see also, Lockett v. Ohio, 438 U.S. 586 (1978);
Eddings v. Oklahoma, 455 U.S. 104 (1982); Skipper v. South Carolina, 476 U.S. 1, 4 (1986)
(citations omitted); Hitchcock v. Dugger, 481 U.S. 393 (1987).

14. Strickland v. Washington, 466 U.S. 668, 685 (1984).

15. Id.

16. Id.

17. See Holloway v. Arkansas, 435 U.S. 475, 490-91 (1978).

18. Kimmelman v. Morrison, 477 U.S. 365 (1986).

19. Id.

20. Id. at 385.

21. Id.

22. See, e.g., Horton v. Zant, 941 F.2d 1449, 1462 (11th Cir. 1991) (“Our case law rejects the
notion that a ‘strategic’ decision can be reasonable when the attorney has failed to investigate his
options and make a reasonable choice between them.”).

23. Penry v. Johnson, 532 U.S. 782, 797 (2001) (internal citations omitted).
24. See American Bar Association’s Guidelines for the Appointment and Performance of
Defense Counsel in Death Penalty Cases, Guideline 11.4.1 (1989 Edition) (“Investigation”) and
comment. (“Without investigation, counsel's evaluation and advice amount to little more than a
guess.”). [These Guidelines were Revised by the American Bar Association in February 2003.
The revised Guideline reference will be found at Guideline 10.7.]

25. See American Bar Association’s supra note 24, Guideline 11.8.5 (1989 Edition) (“The
Prosecutor's Case at the Sentencing Phase”) and 11.8.6 (“The Defense Case at the Sentencing

26. Brownlee v. Haley, 306 F.3d 1043 (11th Cir. 2002).

27. Id. at 1070.

28. Id.

29. Id.; See, also Caro v. Woodford, 280 F.3d 1247, 1255 (9th Cir. 2002), cert. denied, 122 S.
Ct. 2645 (2002); Coleman v. Mitchell, 268 F.3d 417, 449-51 (6th Cir. 2001), cert. denied, 122 S.
Ct. 1639 (2002); Jermyn v. Horn, 266 F.3d 257, 307-308 (3d Cir. 2001); accord [Terry] Williams
v. Taylor, 529 U.S. 362, 395-96 (2000) (counsel ineffective for failing to uncover and present
evidence of defendant’s “nightmarish childhood,” borderline mental retardation, and good
conduct in prison); Battenfield v. Gibson, 236 F.3d 1215, 1229 (10th Cir. 2001) (“There was no
strategic decision at all because Shook was ignorant of various other mitigation strategies he
could have employed.”).

30. Voyles v. Watkins, 489 F. Supp. 901, 910 (N.D. Miss. 1980); accord Austin v. Bell, 126
F.3d 843, 849 (6th Cir. 1997) (counsel’s failure to investigate and present mitigating evidence at
the penalty phase of the trial, on grounds that he “did not think that it would do any good,”
constituted ineffective assistance).

31. Williams v. Taylor, 529 U.S. 362, 395; See also, Marshall v. Hendricks, 307 F.3d 36 (3d
Cir. 2002) (Although counsel competently handled the guilt phase of the trial, the court found
that their representation during the sentencing phase fell short of professional standards).

32. See American Bar Association supra note 24, Guideline 11.4.1) (“Investigation”); see also
ABA Prosecution Function and Defense Function Standards, Standard 4-4.1 (“Duty to

33. See Penry v. Lynaugh, 492 U.S. 302, 327-28 (1989).

34. Skipper v. South Carolina, 476 U.S. 1, 4-5 (1986).

35. See e.g., Carter v. Bell, 218 F.3d 581, 596 (6th Cir. 2000).
36. Blanco v. Singletary, 943 F.2d 1477, 1501-03 (11th Cir. 1991).

37. American Bar Association supra note 24, Guideline 11.4.1 (1989 Edition) (“Investigation”)
(“The investigation for preparation of sentencing phase should be conducted regardless of any
initial assertion by the client that mitigation is not to be offered.”) See also, e.g., Daniels v.
O'Connor, 243 So. 2d 144, 147 (Fla. 1971) (remarking that a mentally ill defendant “might
mislead his counsel as to facts, misinform them as to his relations with other actors in the legal
drama, and be utterly unreliable as a witness in his own behalf.”) (quoting State ex rel. Deeb v.
Campbell, 167 So. 805, 806 (Fla. 1936)).

38. See Hull v. Freeman, 932 F.2d 159, 168 (3d Cir. 1991).

39. Ake v. Oklahoma, 470 U.S. 68, 80 (1985).

40. Strickland, 466 U.S. at 688.

41. See Model Rules of Professional Conduct R. 1.1 & R. 1.3 (2002); see also, Peter A. Joy and
Robert R. Kuehn, Conflict of Interest and Competency Issues in Law Clinic Practice, 9 Clinical
L. Rev. 493, 497 n.11 (2002).

42. See Restatement (Third) of the Law Governing Lawyers 16 comment d; 52 comment c
(2000); Model Rules of Prof'l Conduct R. 1.1 comment 5 (2002).

43. Ronald E. Mallen & Jeffrey M. Smith, Legal Malpractice 30.27 at 528 (5th ed. 2000); see
also Wagenmann v. Adams, 829 F.2d 196 (1st Cir. 1987).

44. Strickland v. Washington, 466 U.S. 688.

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