A deadly dilemma: choices by attorneys representing "innocent" capital defendants.

• Author: White, Welsh S.

TABLE OF CONTENTS INTRODUCTION I. WIGGINS V. SMITH'S IMPACT ON COUNSEL'S STRATEGIC CHOICES A. The Wiggins Decision B. Three Unresolved Issues 1. The Duty to Investigate for "All Reasonably Available Mitigating Evidence". 2. The Defendant Instructs the Attorney Not to Look for Mitigating Evidence 3. Strategic Choices to Ignore Potential Mitigating Evidence II. PREPARING FOR THE PENALTY TRIAL A. The Division of Responsibility Between Lawyer and Client B. The Difference Between Experienced and Inexperienced Capital-Defense Attorneys C. The Attorney's Obligation to Investigate in Preparation for the Penalty Trial III. DEFENSE COUNSEL'S STRATEGY AT THE PENALTY TRIAL 2031 A. The Effect of the Defendant's Claim of Innocence at the Guilt Trial B. Arguing Lingering Doubt at the Penalty Trial 1. Examples of Lingering-Doubt Arguments 2. Two Penalty-Trial Arguments IV. THE STANDARDS FOR EVALUATING STRATEGIC CHOICES BY ATTORNEYS REPRESENTING CAPITAL DEFENDANTS WITH A STRONG CLAIM OF INNOCENCE A. The Attorney's Obligation to Investigate for Reasonably Available Mitigating Evidence B. The Attorney's Obligation to Investigate for Mitigating Evidence When the Defendant Instructs Her Otherwise 2054 C. The Attorney's Obligation to Make a Reasonable Strategic Decision Relating to Potential Mitigating Evidence CONCLUSION INTRODUCTION

A lawyer who represents a capital defendant with a strong innocence claim must allocate her resources between the separate guilt and penalty phases (1) of the capital case. Expending resources in preparation for a penalty trial may result in less attention to securing the acquittal on the capital charge at the guilt trial that would make the penalty phase moot. But focusing primarily on proving the defendant's innocence at the guilt trial means less preparation in the case of a guilty verdict. Once a defendant is convicted of a capital offense, a lawyer must also make strategic decisions about the penalty phase. By focusing primarily on reasserting the defendant's claim of innocence, she can seek to convince the jury that they should spare the defendant because of their lingering doubt as to his guilt. Alternately, she can accept the jury's verdict at the guilt stage and focus primarily on introducing mitigating evidence that will explain the defendant's background to the jury. In dealing with these critical strategic choices, what should the lawyer do?

In Wiggins v. Smith, (2) the Court held a capital defendant's attorney's decision to focus solely on reasserting the defendant's claim of innocence at the penalty trial to be ineffective assistance of counsel. (3) This decision demonstrated that capital defendants" attorneys' decisions to focus primarily or exclusively on reasserting defendants' claims of innocence at the penalty stages of capital trials will not automatically be viewed as reasonable strategic choices. As I will discuss below, the attorneys in Wiggins made some unusually questionable decisions, making it difficult to determine how to apply the Court's holding to other fact patterns. To consider issues that arise more frequently, it is useful to consider Ronnie Chandler's trial for capital murder. Although Chandler's case is not necessarily typical, the problems presented for Chandler's attorney in that case exemplify some of the problems likely to be encountered by an attorney representing a capital defendant with a strong claim of innocence.

Near a small, rural lake in Piedmont, Alabama, Charles Jarrell killed his brother-in-law, Marty Shuler, on May 8, 1990. (4) In 1991 the United States indicted David "Ronnie" Chandler for capital murder under the federal death-penalty statute, claiming that Chandler was a drug kingpin who had hired Jarrell to kill Shuler. (5) Subsequently, Chandler retained Drew Redden, an able and experienced criminal-defense attorney, (6) to defend him at trial. (7) Redden immediately began preparing Chandler's case. (8) After interviewing "at least 67 witnesses" in the Piedmont area, Redden determined that the government's case against Chandler was weak. (9) He "actively pursued acquittal" (10) at trial and did not prepare for the penalty trial, which would only take place if Chandler was convicted of the capital-murder charge. (11)

At trial, Jarrell, the government's chief witness, testified that Chandler had offered him $500 to kill Shuler, whom Chandler believed to be a police informant. (12) Jarrell said that he accepted this offer, received a gun from Chandler, and drove Shuler to Snow's Lake, where the two engaged in target practice before Jarrell shot Shuler twice, killing him. (13) Jarrell claimed that he then met Chandler and together they hauled "Shuler's body away for burial." (14)

Redden impeached Jarrell's testimony by showing he had made several "inconsistent statements." (15) When first arrested, Jarrell stated that he had not killed Shuler. (16) Later he said that he accidentally shot Shuler, (17) and then that he had murdered him out of "personal animosity." (18) Finally, after receiving the government's promise that, in exchange for his testimony, neither he nor his son would be prosecuted for killing Shuler, (19) Jarrell implicated Chandler in the murder. (20)

Redden also showed that Jarrell never received $500 from Chandler (21) and had consumed twenty-three beers just before shooting Shuler. (22) In addition, Redden presented evidence indicating Jarrell's motive for killing Shuler. Shuler had married Jarrell's sister and Redden introduced evidence showing that Jarrell was angry at Shuler because he had been an abusive husband. (23) Jarrell even admitted that less than a year before he killed Shuler he had attempted to murder his brother-in-law because of the escalating abuse. At that time, after telling Shuler "he was going to kill him," he placed a "pistol against Shuler's nose and pulled the trigger," but the gun did not fire. (24) At Chandler's trial, Jarrell told the jury that "'[t]he Lord didn't intend for [Shuler] to die that night." (25)

Although the government's murder charge depended almost entirely on Jarrell's testimony, the jury convicted Chandler of capital murder, thus setting the stage for the penalty trial. (26) The verdict shocked Redden. (27) He had expected an acquittal and had done nothing "to prepare for the sentencing phase of the trial." (28) In a last-minute attempt to save his client's life, Redden asked "Chandler's wife ... to round up witnesses who could speak up for Chandler" at the penalty trial, which was to begin the following day. (29) Extremely distraught, she could identify only her preacher. (30)

At sentencing, Redden's primary argument was that the jury should not impose the death sentence because of its lingering doubt as to Chandler's guilt. He also noted the defendant had no prior convictions and called his wife and mother to testify. (31) In rebuttal, the prosecutor reminded the jury that even Charles Manson and "'Jack the Ripper had a mother.'" (32) The jury unanimously recommended that Chandler "be sentenced to death." (33)

Chandler later sought to vacate his death sentence on the ground that he did not receive effective assistance of counsel at sentencing. (34) Specifically, he claimed that Redden's representation was unreasonable because he failed to "investigate and ... present character witnesses" at sentencing. (35) Chandler's new attorney presented twenty-seven witnesses who testified to numerous occasions on which Chandler had assisted others in need of help. Martha Heath, for example, testified that Chandler bought her son two new pairs of shoes after seeing him running shoeless "around Piedmont's projects." (36) Elaine Freeman testified that Chandler gave her neighbor's family money to pay for their son's burial when he died in an auto accident. (37) Jerry Masters testified that Chandler helped erect a fellowship hall at [a] church and "'didn't charge a penny.'" (38) Others testified that Chandler built a porch so a disabled man could enter and exit his house, gave needy mothers bags of groceries, and donated heavily to charities. (39) Chandler claimed that Redden's failure to do the investigation necessary to find these witnesses constituted deficient performance, thus satisfying the first prong of Strickland v. Washington's test for ineffective assistance of counsel. (40)

The Eleventh Circuit, in a 6-to-5 decision, rejected Chandler's claim. The court concluded that "focusing on acquittal at trial and then on residual doubt at sentencing (instead of other forms of mitigation) can be reasonable ... [e]specially when ... the evidence of guilt [is] not overwhelming." (41) Because the government did not possess a strong case against Chandler, the court held that Redden acted reasonably. (42) His decision to vigorously seek an acquittal at the expense of an investigation into mitigating evidence did not fall "outside the wide range of professionally competent assistance." (43) The court thus affirmed Chandler's death sentence.

After Chandler's death sentence was affirmed, Jarrell admitted that his testimony at Chandler's trial had been false. (44) Nevertheless, Chandler's subsequent efforts to obtain relief from the courts have been unsuccessful, (45) In 2001, however, President Clinton commuted his death sentence to a sentence of life imprisonment without the possibility of parole. (46)

Chandler's case has attracted substantial media attention because of the doubts as to his guilt. (47) Over the past decade, there have been a surprisingly large number of cases in which defendants sentenced to death have been exonerated. (48) And stories like Chandler's may suggest that the cases in which defendants on death row have been exonerated through DNA-testing (49) or other evidence of a wrongful conviction (50) are only the tip of the iceberg. The Chandler case thus exemplifies a situation in which a possibly innocent defendant who is sentenced to death is unable to obtain relief from...