Strategery's refuge.

• Author: Seeds, Christopher
• Position: Standards of capital defense practice

Strategic decisions are entitled to deference under Strickland only if they were made on the basis of reasonable professional judgment after diligent investigation of the pertinent facts. Anything less than that is "strategery," not "strategy."

--Stephen F. Smith (1)

[I]t falls most importantly to the trial attorney, as the composer ... to minimize dissonance and enhance harmony.

--Scott. E. Sundby (2)

1. INTRODUCTION

   The "distorting effects of hindsight"--this is how the United States Supreme Court, since Strickland v. Washington, (3) has referred to the dangers that inhere in postconviction critiques of trial counsel's performance. Skepticism toward backward glances resonates because of the belief that counsel at trial is better positioned to exercise judgment in the moment than experienced litigators or members of the judiciary who reconstruct the circumstances years down the road. But an inverse phenomenon, just as risky, holds sway today: rules and perspectives molded to outdated standards of the past govern the present. For decades, this has hindered the legal doctrine of effective assistance of counsel in capital sentencing proceedings, and has resulted in the denial of relief to many defendants whose counsel performed below prevailing professional norms. Just as hindsight ought not distort the past, the past ought not obscure the evolution to the present; lawyers should be held to standards of their time, not to the less exacting requirements of a bygone era. This has and continues to be the case, however, with constitutional review of the effectiveness of counsel in capital sentencing trials.

   The beneficiaries of this time slip are underperforming trial counsel faced with ineffectiveness claims in collateral review. The Supreme Court's early ineffective assistance of counsel cases, Strickland v. Washington, (4) Burger v. Kemp, (5) and Darden v. Wainwright, (6) found counsel's representation constitutionally adequate, despite the fact that what jurors heard about the defendant in those cases was a paltry patchwork--a life story incoherent, inconsistent, and incomplete, seemingly a far cry from the individualized sentencing proceeding that the Court, not long before, found the Eighth Amendment mandates. These early decisions, looking to performance standards in the late 1970s as guides, condoned limited investigations into the defendant's life history and resulting failures to present mitigating evidence, on the ground that the evidence that counsel allegedly (in hindsight) should have pursued would not have helped and, indeed, may have harmed the defendant's case for life. For years, this precedent, accepting counsel's failure to investigate or present life history mitigation where evidence was "double-edged," facilitated post hoc attempts by counsel (and courts) to shelter subpar performance under the guise of tactical decisions. (7) Professor Stephen Smith, borrowing a word from the lexicon of the television show Saturday Night Live, has used the term "strategery" to describe these post hoc rationalizations. (8)

   The propagation and acceptance of post hoc rationalizations--the sheltering of "strategery"--since Strickland has occurred principally in two ways, each linked to one of the Strickland standard's two parts. (9) First, courts have excused incomplete investigations into factors relevant to sentencing as appropriate defense strategy. Second, courts have tacitly condoned deficient preparation or presentation by finding that counsel's failures, even if strategically unsound, did not materially impact the outcome. Underlying each maneuver is a belief that additional efforts by counsel would have merely yielded evidence more aggravating than mitigating--that counsel's failure to investigate evidence of mental illness or childhood physical or sexual abuse, for example, was reasonable (or that counsel's failure to present such evidence to explain a defendant's background was not prejudicial) because the evidence would have been perceived by a jury to promote rather than oppose a death sentence. Although the Strickland doctrine provides that no tactical decision by counsel is justifiable unless it is based on reasonably thorough investigation, this principle has long been underused as courts have failed to recognize the steady rise in the standards of capital defense practice.

   Since the turn of the century, however, the Supreme Court has taken steps to bring its jurisprudence up to date. In three cases, Williams v. Taylor, (10) Wiggins v. Smith, (11) and Rompilla v. Beard, (12) the Court found representation deficient that it would have accepted years earlier. In each case, the Court reiterated that prevailing performance standards should guide assessments and stressed the need for thorough life history investigation as a precursor to any strategic decision-making. To many, these cases mark the advent of an era of stronger Court oversight of the quality of representation and stronger policing of political incentives in death penalty cases. Commentators have celebrated that the right to effective assistance of counsel in capital cases at last has teeth--something that, as death-sentenced defendant after death-sentenced defendant in the 1980s and 1990s experienced, it sorely lacked.

   But this celebration is half-blind. Behind the scenes of the Supreme Court's nascent recognition of the need for attorneys in capital cases to investigate and present comprehensive life histories of their clients and the Court's reaffirmation of the importance of prevailing professional norms, lurk remnants of the past. Indeed, more than remnants. The survey of decisions from federal courts of appeals conducted for this Article shows that, despite the Supreme Court's aggressive critiques of counsel in Williams, Wiggins, and Rompilla, the shelters for post hoc rationalizations remain.

   The next three Parts of this Article set the lay of the land. Part II begins with the Court's early cases ruling on the performance of counsel in capital sentencing trials that took place in the late 1970s, shortly after the modem era of the death penalty began. After tracing the growth of the concept of mitigation in capital defense practice, and the lag with which courts acknowledged that evolution, the discussion turns to the Court's new precedent, which incorporates more demanding contemporary professional standards.

   Part III shows how the new precedent, while reinvigorating the use of prevailing professional norms as guides, nevertheless permits a refuge for post hoc rationalizations through its general acceptance of the old precedent. There is a long-standing tension between the prevailing standards of practice and the old precedent that Wiggins and Rompilla left unresolved. On one hand, much life-history material that is "double-edged" forms the essence of explaining who the defendant is, which is the purpose of the individualized sentencing proceeding in a capital case. On the other hand, given the frequency with which a defendant's future dangerousness is alleged as an aggravating factor in capital cases, concern about presenting mitigation, such as evidence of mental illness, that could turn against the client (or open the door to counterargument that would portray the client as a psychopath or otherwise support a propensity for violence) is perhaps warranted. (13) The idea that avoiding or withholding evidence that is double-edged may be the best road to a life sentence therefore arguably holds some force--and according to the old precedent, this is just the type of decision by counsel that distorting hindsight ought not overturn. As the new cases seek to enforce full life-history investigations, the old precedent in certain circumstances allows something less. In Wiggins and Rompilla, the Court sought to distinguish, rather than overrule or explicitly limit, the old precedent. While, as I will explain, a reasonable read of the new precedent relegates the old precedent to a small set of cases in which counsel substantially investigates and then seeks to limit additional investigation or the presentation of evidence (cases, in other words, in which counsel's decisions are not post hoc anyway), some courts have used the gap between the cases to sanction abbreviated investigations of double-edged evidence and limited theories of mitigation. (14)

   Part IV surveys all federal courts of appeals' decisions on sentencing ineffectiveness since the Court decided the first of the new trio, Williams v. Taylor, (15) in April 2000. This identifies a second, more deeply rooted reason for the continued shelter of strategery. In addition to the apparent doctrinal gap discussed in Part III, a perceptual divide exists between decision-makers who see double-edged background evidence as mostly mitigating and those who see it as equally (or more) aggravating. A principal shelter of strategery, therefore, may be the divergent perceptions among judges of the value of explanatory mitigation, which in turn fuels weak readings of Williams, Wiggins, and Rompilla. (16)

   While a lot has changed in capital practice standards since the modern era of capital punishment began in the late 1970s, for many attorneys and courts, the question of what counsel should do with "double-edged" evidence in a capital sentencing trial is still up in the air. As commentators pronounce that the Court has taken a stand against post hoc rationalizing, (17) any federal or state postconviction judge routinely reviewing capital trial counsel's performance knows that loopholes remain. Without addressing the bases of these gaps, the possibility that inadequate counsel will use the old precedent as cover, after the fact, for poor trial preparation endures. The refuges for post hoc rationalizations still stand.

   Part V explores how the divergent perceptions among judges and lawyers over the value of explanatory mitigation can be bridged. The matter is complicated. Post hoc...