The revised ABA guidelines and the duties of lawyers and judges in capital postconviction proceedings.

• Author: Freedman, Eric M.

1. INTRODUCTION

   On February 10, 2003, the American Bar Association approved the revised edition of its Guidelines for the Appointment and Performance of Defense Counsel in Death Penalty Cases. (1) Their purpose is to articulate the "national standard of practice for the defense of capital cases"; (2) they "are not aspirational. Instead, they embody the current consensus about what is required to provide effective defense representation in capital cases." (3) Because the ABA does not oppose the death penalty but does believe in justice, (4) it sets as its bedrock criterion the principle that "any jurisdiction wishing to impose a death sentence must at minimum provide representation that comports with these Guidelines." (5)

   Significantly for the special concerns of this issue of the Journal, the Guidelines

   apply from the moment the client is taken into custody and extend to all stages of every case in which the jurisdiction may be entitled to seek the death penalty, including ... post-conviction review, (6) clemency proceedings, and any connected litigation. (7) As detailed in the three Parts of this Article that follow, a review of the revised Guidelines with a special focus on their implications for capital post-conviction proceedings reveals that:

   1. There is a right to the effective assistance of counsel beyond direct appeal. The conventional wisdom, that the federal Constitution guarantees no such right and therefore none exists, is flawed on multiple levels. It is a perilous foundation on which to ground any legal conclusion, and an unacceptable one on which to build a just system for adjudicating capital cases.

   2. The defense bar will need to expand its traditional concept of what constitutes a lawyering task, and recognize that lead counsel in a properly conducted death penalty case is the captain of a defense team of lawyers and non-lawyers deployed to pursue the best interests of the client. (8) For example, a lawyer who fails to conduct a broad-ranging investigation of both the guilt and penalty phases--taking responsibility for duties traditionally relegated to forensic experts or social workers or, more commonly, not performed at all--is ineffective. (9) Similarly, an effective capital post-conviction lawyer does not just litigate--although he or she most certainly does litigate, and to a greater degree than traditionally recognized (10)--but also pursues with vigor the possibility of an agreed-upon disposition of the case, (11) seeking that goal through a variety of means. (12)

   3. Judges (13) will need to recognize the foregoing in compensating counsel and other members of the defense team. Realistically, this will involve a significant increase in the amount of resources currently provided. (14) That is the ineluctable consequence of a simple fact: "The death penalty is expensive." (15) But only by paying its costs can we have confidence in the appropriateness of executions that will ultimately be carried out in the name of all of us. Money paid for effective post-conviction representation in capital cases is not a windfall bestowed upon defense lawyers but rather an investment in the system of justice." (16)

2. EFFECTIVE ASSISTANCE OF POST-CONVICTION COUNSEL: A LEGAL RIGHT THAT IMPROVES THE JUSTICE SYSTEM

   In applying a uniform standard of competence to capital defense lawyers from the moment of arrest through final action on executive clemency, the Guidelines recognize current legal and practical realities.

   Although, to be sure, as a matter of formal doctrine there is presently no federal constitutional right to the assistance of counsel to pursue collateral attacks on state capital convictions, the case on which that proposition rests is shaky at best, (17) and unlikely to survive the vigorous attacks that will surely be leveled at it in the years to come. (18) In light of the accumulated experience of the intervening years reflected in the Guidelines, (19) the Justices' recent expressed concerns about the quality of defense representation in capital cases, (20) and the renewed vigor with which the Court has scrutinized the performance of counsel, (21) there is a good chance that within the next few years this precedent will be radically narrowed if not overruled outright. Even if the federal constitutional proposition endures, its practical effect will predictably be undermined by a series of developments in state and federal law that render it irrelevant. (22) More generally, courts can be expected to develop law in response to facts, (23) and, as the following discussion indicates, the factual case for a right to the effective assistance of postconviction counsel in capital cases is overwhelming.

   Simply put: "Quality representation in both state and federal court is essential if erroneous convictions and sentences are to be corrected." (24) The Commentary documents this proposition at some length, (25) but the bottom line is straightforward. The most comprehensive available data show that of every hundred death sentences imposed, sixty-eight percent do not survive post-conviction review; forty-seven percent are reversed at the state level (roughly forty-one percent on direct appeal and six percent on state collateral attack), and a further twenty-one percent on federal habeas corpus. (26)

   These statistics, moreover, come from a system which has hardly been loath to allow procedural considerations to foreclose review of the merits, (27) which has until recently been willing to uphold as effective a level of performance that most people would consider appalling malpractice if displayed by the lawyer they had engaged to assist them in the purchase of a new home, (28) and which--not unconnectedly--has seen a frightening number of cases in which the system has acknowledged coming to the brink of executing an innocent person. (29)

   The implications are twofold:

   * Jurisdictions must create mechanisms to provide effective assistance of counsel throughout the pendency of a capital case; (30) and

   * Judges must recognize the right to such assistance both in reviewing attacks on the performance of counsel at prior stages of the proceeding, and in providing funding for postconviction counsel appearing before them. (31) To do otherwise will not only render convictions vulnerable to subsequent reversal, but--far more importantly--undermine the justice and reliability, real and perceived, of case outcomes. The premise of the Guidelines since their inception has been that

   [a]ll actors in the system share an interest in the effective performance of [capital post-conviction] counsel; such performance vindicates the rights of defendants, enables judges to have confidence in their work, and assures the states that their death sentences are justly imposed. (32) III. EFFECTIVE ASSISTANCE OF POST-CONVICTION COUNSEL: THE STANDARD OF PRACTICE

   Among the judges who must depend on the quality of counsel's work in death penalty cases are the Justices of the Supreme Court of the United States. This may or may not be related to a new willingness on the part of that Court to give teeth, in the capital context at least, to a constitutional standard for the effective performance of counsel that has hitherto been universally denounced as flaccid. (33)

   In Williams v. Taylor, (34) counsel at the penalty phase of a capital trial were held ineffective for failing to uncover and present evidence of defendant's "nightmarish childhood," borderline mental retardation, and good conduct in prison. (35) Their performance, the Court held, violated the obligation of counsel in a capital case "to conduct a thorough investigation of the defendant's background." (36)

   Then came Wiggins v. Smith. (37) In what seems to have been a deliberate effort to reinforce the message of Williams, (38) the Court by a vote of seven to two "took a major step toward dealing with the pervasive and persistent problem of inadequate representation for indigent capital murder defendants." (39) Trial counsel in Wiggins were held ineffective because, although they did uncover some mitigation evidence, their investigation was inadequate; it "fell short of the standards for capital defense work articulated by the American Bar Association--standards to which we long have referred as 'guides to determining what is reasonable.'" (40) Counsel "acquired only a rudimentary knowledge of [the client's] history from a narrow set of sources," notwithstanding the "well-defined norms"--embodied in the 1989 edition of the Guidelines--calling for an investigation, inter alia, into "medical history, educational history, employment and training history, family and social history, prior adult and juvenile correctional experience, and religious and cultural influences." (41)

   While the case has a variety of ramifications, (42) the key point for present purposes is that Mr. Wiggins's right to the effective performance of trial counsel was only vindicated by the work of post-conviction counsel, who complied with their obligations under the Guidelines and did what trial counsel ought to have done. (43)

   Although this is precisely why the obligations of the Guidelines (including, but not limited to, the "obligation to conduct thorough and independent investigations relating to issues of both guilt and penalty") (44) apply "to all stages" of every capital case, (45) the practical effect is that post-conviction counsel face a truly daunting task:

   The post-conviction handling of capital cases is a legal specialty requiring mastery of an intricate body of fast-changing substantive and procedural law.... Furthermore, taking on such a case means making a commitment to the full legal and factual evaluation of two very different proceedings (guilt and sentencing) in circumstances where the client is likely to be the subject of intense public hostility, where the state has devoted maximum resources to the prosecution, and where one must endure the draining emotional effects of one's...