Counsel's control over the presentation of mitigating evidence during capital sentencing.

• Author: Blakemore, James Michael

The Sixth Amendment gives a defendant the right to control his defense and the right to a lawyer's assistance. A lawyer's assistance, however, sometimes interferes with a defendant's control over his case. As a result, the Supreme Court, over time, has had to delineate the spheres of authority that pertain to counsel and defendant respectively. The Court has not yet decisively assigned control over mitigating evidence to either counsel or defendant. This Note argues that counsel should control the presentation of mitigating evidence during capital sentencing. First, and most importantly, decisions concerning the presentation of mitigating evidence are best characterized as strategic, and the Sixth Amendment right to counsel allocates strategic decisions to attorneys. Second, the criminal justice system's need for reliable and legitimate outcomes--a need that reaches its zenith during capital sentencing--outweighs a capital defendant's limited claims to autonomy.

TABLE OF CONTENTS INTRODUCTION I. THE DEFENDANT'S RIGHT TO CONTROL HIS CASE A. The Division of Decisional Labor at Trial: Fundamental Versus Strategic Choices B. Sixth Amendment Rights During Capital Sentencing II. DISTINGUISHING THE RIGHT TO PRESENT MITIGATING EVIDENCE A. The Right to Present Mitigating Evidence B. Schriro v. Landrigan: The Unresolved Issue of the Defendant's Control over Mitigating Evidence III. MITIGATING EVIDENCE AS A STRATEGIC DECISION IV. AUTONOMY, RELIABILITY, AND THE ADVERSARY SYSTEM A. Rebutting the Autonomy Argument B. Reliable, Individualized Sentences C. A Final Objection CONCLUSION INTRODUCTION

A guilty verdict changes the rules in a capital trial. Once a court has found a capital defendant guilty, it turns to the question of his (1) sentence, and the trial changes form. Floyd Maestas's trial was no different. After a jury found him guilty of aggravated murder in the strangling, stabbing, and stomping death of a seventy-two-year-old woman, as well as the aggravated burglary of an eighty-seven-year-old woman whom he punched in the face, (2) the proceedings shifted to the penalty phase to decide whether to put Maestas to death. (3) The shift brought with it a new array of prosecutorial possibilities. Because the rules of evidence and the Confrontation Clause often do not apply at capital sentencing, (4) evidence relating to Maestas's criminal record and criminal propensities, which would have been inadmissible at trial, was presented to the jury. (5) The State likewise presented evidence of Maestas's prior crimes that the judge had found too "weak" to admit at trial under the normal rules of evidence. (6) Because the Supreme Court condones the use of victim-impact evidence to balance the presentation of mitigating evidence, (7) the murder victim's granddaughter testified, recounting how, lacking the money to hire help, she had been forced to clean up her grandmother's blood in the days after the murder. (8)

Maestas's counsel, however, did not present the majority of the mitigating evidence that the victim-impact testimony was meant to balance. When Maestas learned that his counsel planned to call a witness who would testify that she had seen him at seven years old having sex with his fourteen-year-old sister, Maestas requested that his lawyers be removed and that no mitigating evidence be presented. (9) He claimed that the proposed testimony was false, and he worded that it would damage his relationship with his family. (10) The court found that Maestas's waiver of counsel would not be constitutionally valid, so rather than remove his lawyers, it ordered them to respect Maestas's decisions concerning mitigating evidence. (11) As a result, not only did the jury not hear of the sexual episode but it also did not learn that Maestas, at eight years old, had seen the same sister stabbed to death by her boyfriend. (12) Moreover, the jury heard nothing of the older boy who sexually abused a six-year-old Maestas or of Maestas's significant cognitive deficiencies. It also heard very little about his childhood poverty. (13) In essence, the jury heard only aggravating evidence that would have been inadmissible at trial, and then sentenced Maestas to death. (14)

In at least one respect, Maestas's story is not unusual. Capital defendants often object to the presentation of traumatizing or embarrassing mitigating evidence. (15) It remains unsettled, however, whether courts should sustain these objections. (16)

This Note argues that a capital defendant's Sixth Amendment right to control his trial does not extend to strategic decisions concerning the introduction of mitigating evidence during capital sentencing. Part I explains the doctrine governing the division of decisionmaking power between defendant and counsel at trial--a division that turns primarly on whether the decision in question is fundamental or strategic. Part II argues that although the defendant has a right to present mitigating evidence, it does not necessarily follow that he has a right to prohibit his counsel from introducing mitigating evidence. Part III argues that the decision to present mitigating evidence is strategic, not fundamental, and as a result, the introduction of mitigating evidence should be counsel's prerogative. Part IV considers and rebuts arguments in favor of allowing a capital defendant to control the introduction of mitigating evidence, and it concludes that the State's interest in conducting just, reliable, and efficient proceedings outweighs a convicted defendant's diminished interest in autonomy.

1. THE DEFENDANT'S RIGHT TO CONTROL HIS CASE

   The Sixth Amendment is structurally at odds with itself. It gives the defendant the right both to control his defense and to have a lawyer's assistance. But because the lawyer's assistance sometimes interferes with the defendant's control, the Supreme Court has had to delineate each party's sphere of authority. Gradually distinguishing between fundamental and strategic decisions, the Court has allocated control over the former to the defendant and the latter to counsel. Such is the situation at trial, anyway. During capital sentencing proceedings, however, the allocation of control is less clear, as the Court has declined the wholesale application of Sixth Amendment trial rights in those proceedings. Indeed, few trial rights survive the transition to the penalty phase. The unequivocal survival of the Sixth Amendment right to counsel during this phase, however, suggests that strategic decisions during capital sentencing remain firmly in the lawyer's province. Section I.A outlines the division of decisionmaking power the Sixth Amendment mandates at trial, while Section I.B examines the extent to which Sixth Amendment trial rights continue to apply during capital sentencing.

   1. The Division of Decisional Labor at Trial: Fundamental Versus Strategic Choices

      The right to represent oneself and the right to counsel sometimes conflict. The Constitution protects a defendant's choice to represent himself, regardless of whether that choice is ultimately in his own interest. (17) It is the defendant "who suffers the consequences if the defense fails," the Supreme Court reasoned in Faretta v. California, and thus the law gives "[t]he right to defend ... directly to the accused." (18) Even as the Court delineated this right to self-representation, however, it recognized the tension in the structure of the Sixth Amendment between "the right of an accused to conduct his own defense" (19) and the requirement that "[i]n all criminal prosecutions, the accused shall enjoy the right ... to have the Assistance of Counsel for his de fence." (20)

      This tension is particularly apparent in situations where a defendant does not choose to represent himself. The Court, in recognizing the right to self-representation, acknowledged that when the defendant is represented by counsel, "law and tradition may allocate to the counsel the power to make binding decisions of trial strategy in many areas." (21) The law and tradition that the Court references are significant: even before the Court recognized the right to self-representation, it had differentiated between strategic or tactical decisions and "personal choices," allocating the former to counsel and reserving the latter exclusively for the defendant. (22) The line between strategic and personal decisions is not always clear, however, leaving courts to analogize to existing precedent to determine which category decisions fall into as they arise. (23)

      When the Court first recognized the right to serf-representation, anxiety about its effect on the right to counsel quickly surfaced. Some argued that Faretta had upset the case law's division of decisionmaking between counsel and defendant. (24) These scholars read Faretta as limiting an attorney's previously broad authority, reducing it to "'on-the-spot' decisions where timing considerations precluded consultation with the defendant." (25)

      As time went on, however, the Court dispelled any doubt about the viability of the distinction between attorney-controlled strategy and the defendant's fundamental choices. In Jones v. Barnes, the Court made clear that the defendant has the "ultimate authority" to decide "whether to plead guilty, waive a jury, testify in his or her own behalf, or take an appeal." (26) Due to their "fundamental" nature, these decisions are reserved for the defendant. (27) Conversely, strategic decisions that would benefit from the "professional judgment" and "superior ability of trained counsel" are better left to lawyers. (28)

      Today, a large number of decisions fall within counsel's broad sphere of authority. Giving counsel control over the strategic elements of a trial, in the words of the Court, "is a practical necessity," since the "adversary process could not function effectively if every tactical decision required client approval." (29) As a result, so long as counsel has discharged her duties...