Cosio v. United States

RUIZ, Associate Judge,

concurring:

I fully agree with Judge Glickman’s persuasive opinion for the court that the investigation conducted by appellant’s trial counsel was deficient and that appellant was prejudiced as a result. We have been applying the familiar two-pronged test of deficient performance and prejudice established in Strickland for many years, including the understanding that a fair amount of leeway is to be accorded in evaluating counsel’s performance under the deficiency prong. Viewed through that familiar lens, there could have been understandable reluctance to conclude that counsel not only should have pursued a *1136 different investigative course but also was constitutionally deficient for failing to do so. The basis for such qualms has been eliminated by the Supreme Court’s more recent opinions, particularly Wiggins v. Smith, 539 U.S. 510 , 123 S.Ct. 2527 , 156 L.Ed.2d 471 (2003), which have highlighted the all-important investigative work that must precede — and provides a basis for— subsequent decisions to be taken by counsel in formulating and implementing a defense. In doing so, the Supreme Court has referred to criteria that must guide counsel’s investigative efforts, including the “standard practice” in the state and the ABA’s Standards for Criminal Justice to which the Court has “long referred as guides to determining what is reasonable.” Id. at 524 , 123 S.Ct. 2527 (internal quotation marks and citations omitted). As I read these cases in the context of Strickland jurisprudence, the Court appears to have 1) identified investigation as a crucially important phase of counsel’s performance in every case, and 2) effectively established a more easily discernible objective template of what a thorough investigation entails against which counsel’s actual investigation can be evaluated — even while maintaining that the reasonableness of investigation must be viewed in light of the facts known in the particular case as well as practical considerations such as available resources. And counsel’s actual reasoning remains important, for one of the factors identified by the Court for finding deficient performance in Wiggins , was that counsel’s failure to conduct a thorough investigation “resulted from inattention, not reasoned strategic judgment.” Id. at 526 , 123 S.Ct. 2527 . See ante at 1125.

I lay out my understanding of the Court’s recent jurisprudence in this area— and I speak only for myself — to say that my agreement in this case does not signify a change in my thinking, expressed in Chatmon v. United States, 801 A.2d 92, 108 (D.C.2002), that when evaluating actions of counsel that do not arise in the context of investigation and as to which there may be a range of permissible options, the court may not turn a blind eye to counsel’s patently sub-par actual performance and judge it acceptable because some other, competent counsel could — but need not — have arrived at the same decision. As we have noted, “many alternative tactics are available to defense attorneys and their actions are often the products of strategic choices made on the basis of their subjective assessment of the circumstances existing at trial.” Zanders v. United States, 678 A.2d 556, 569 (D.C.1996) (quoting Carter v. United States, 475 A.2d 1118, 1123 (D.C.1984), cert denied, 469 U.S. 1226 , 105 S.Ct. 1222 , 84 L.Ed.2d 362 (1985)). The issue of investigation raised here and the issue of trial strategy at issue in Chatmon are in my view different in ways that require a different analysis precisely because in the latter arena an individual counsel’s judgment, experience, ingenuity, zeal — and even luck — play a decisive- part. It is the reasonable exercise of professional judgment by a particular lawyer for the benefit of her client that is the essence of legal representation guaranteed by the Sixth Amendment. As the Court recently observed, “the ‘constitutionally protected independence of counsel’ [is] at the heart of Strickland.” Wiggins, 539 U.S. at 533 , 123 S.Ct. 2527 (quoting Strickland, 466 U.S. at 689, 104 S.Ct. 2052 ). However it may ultimately decide the question, this court will have an opportunity to address the issue if and when it is raised in an appropriate case.