Amicus Curiae Brief — Wiggins v. Smith, Warden

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Susr os, J.s

, Fe oD

JAN 9 2063

No. 02-311

OFHICE OF sd 4

IN THE

Supreme Court of the United States

KEVIN WIGGINS,

Petitioner,

THoMAS R. CORCORAN, et al.,

Respondents.

ON WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

BRIEF AMICUS CURIAE

OF THE AMERICAN BAR ASSOCIATION

IN SUPPORT OF PETITIONER

Of Counsel: ALFRED P. CARLTON

Lawrence J. Fox Counsel of Record

David J. Kessler President

D. Alicia Hickok American Bar Association

Noreen P. Alvarado 750 N. Lake Shore Drive

Emily L. Mirsky Chicago, Illinois 60611

Robin M. Maher (312) 988-5090

Counsel for Amicus Curiae the American Bar Association

———————————

ST IVES BURRUPS/APPELLATE DIVISION, 1617 JFK BOULEVARD, PHILA, PA 19103 (215) 563-9000

TABLE OF CONTENTS

ee TABLE OF AUTHORITIES .................-.

eeu Be INTEREST OF THE AMICUS................-.

oe ee ; ) INTRODUCTION AND SUMMARY OF ARGUMENT

I. THE GUARANTEES OF THE SIXTH AND

EIGHTH AMENDMENTS REQUIRE REASON-

ABLE INVESTIGATION OF MITIGATION

A. The Sixth Amendment Requires Reasonable

| | | | B. The Eighth Amendment Provides the Right to

IES OS ONCE Eh area 40 i F. . Be te, Present Mitigation Evidence for Use by the

Bees aac Wie i te mae a eae eel | 4 Amendments Cannot be Satisfied Without

GES oe el aca eg go od a | Reasonable Investigation of Mitigation

Pac eT a eg ea : | Il. TO BE REASONABLE, AN INVESTIGATION

Sint yet S ied ears : ' | OF MITIGATION EVIDENCE SHOULD BE

: Asie. ee ve gers fe Fig COMPLETE AND THOROUGH............

es & oe ie aa a | A. A Reasonable Mitigation Investigation Is

ah eee Rat | B. A Reasonable Mitigation Investigation Is

C. A Complete and Thorough Mitigation Investi-

gation Is Conducted by Counsel Independently

and With the Assistance of Experts. .......

1. Counsel Should Conduct the Mitigation

Investigation Independently............

TABLE OF CONTENTS

Page

2. Counsel Should Conduct the Mitigation

Investigation with the Assistance of Experts. 20

III. COUNSEL HAS AN ETHICAL OBLIGATION

TO CONDUCT A REASONABLE INVESTIGA-

TION INTO MITIGATION EVIDENCE...... 21

SS it ee 24

APPENDIX: GUIDELINE 11.3 - DETERMINING

———— OUT EERMINING

THAT DEATH PENALTY IS BEING

APPENDIX: GUIDELINE 11.4.1- INVESTIGATION A4

APPENDIX: GUIDELINE 11.8.3 - PREPARATION

FOR THE SENTENCING PHASE........... All

APPENDIX: GUIDELINE 11.8.5 - THE PROSECU-

TOR’S CASE AT THE SENTENCING PHASE. Al3

APPENDNX: GUIDELINE 11.8.6 - THE DEFENSE

CASE AT THE SENTENCING PHASE....... Al4

CAS TABLE OF AUTHORITIES

ES Page

Ake v. Oklahoma, 470 U.S. 68 (1985) ............ 20

Atkins v. Virginia, 536 U.S. 304 (2002)........... 19

Attorney Grievance Comm'n v. Zdravkovich, 762 A.2d

DP, < cceceuceeeueeesoee eee nes 22

Austin v. Bell, 126 F.3d 843 (6th Cir. 1997) ....... 12

Battenfield v. Gibson, 236 F.3d 1215 (10th Cir. 2001) 12

Bell v. Cone, 535 U.S. 685 (2002) .............4.. 17

Blanco v. Singletary, 943 F.2d 1477 (11th Cir. 1991). 18

Brownlee v. Haley, 306 F.3d 1043 (11th Cir. 2002) . .11, 12

Burger v. Kemp, 483 U.S. 776 (1987) ............ 17

Caro v. Woodford, 280 F.3d 1247 (9th Cir. 2002), cert.

denied, 122 S. Ct. 2645 (2002) .............. 12

Carter v. Bell, 218 F.3d 581 (6th Cir. 2000)........ 18

Clemons v. Mississippi, 494 U.S. 738 (1990) ....... 10

Coleman v. Mitchell, 268 F.3d 417 (6th Cir. 2001), cert.

denied, 122 S. Ct. 1639 (2002) .............. 12

Daniels v. O’Connor, 243 So. 2d 144 (Fla. 1971) .... 19

Darden v. Wainwright, 477 U.S. 168 (1986) ....... 17

Eddings v. Oklahoma, 455 U.S. 104 (1982)........ i)

Gideon v. Wainwright, 372 U.S. 335 (1963)........ 5

Gregg v. Georgia, 428 U.S. 153 (1976)............ 7

Hitchcock v. Dugger, 481 U.S. 393 (1987) ......... )

Holloway v. Arkansas, 435 U.S. 475 (1978)........ 6

Horton v. Zant, 941 F.2d 1449 (11th Cir. 1991)..... 7

Hull v. Freeman, 932 F.2d 159 (3d Cir. 1991) ...... 20

Jermyn v. Horn, 266 F.3d 257 (3d Cir. 2001)....... 12

ili

TABLE OF AUTHORITIES — (Continued)

Jurek v. Texas, 428 U.S. 262 (1976)

Karis v. Calderon, 283 F.3d 1117 (9th Cir. 2002), cross-

petitions for cert. filed (Sept. 18, 2002) (No. 02-434);

(Sept. 10, 2002) (No. 02-6265) .............. 17

Kimmelman v. Morrison, 477 U.S. 365 (1986)... ... 6,7

Lockett v. Ohio, 438 U.S. 586 (1978) ............. 9

Lowenfield v. Phelps, 484 U.S. 231 (1988)......... 10

Marshall v. Hendricks, 307 F.3d 36 (3d Cir. 2002)... 13

Mills v. Maryland, 486 U.S. 367 (1988)........... 9

Penry v. Johnson, 532 U.S. 782 (2001) ........... 9

Penry v. Lynaugh, 492 U.S. 302 (1989) ........... 14

People v. Bell, 505 N.E.2d 365 (Ill. App. 1987)... .. . 21

Proffitt v. Florida, 428 U.S. 242 (1976) ........... 7

Richmond v. Lewis, 506 U.S. 40 (1992)........... 10

[Stanislaus] Roberts v. Louisiana, 428 U.S. 325 (1976) 7

Simmons v. Luebbers, 299 F.3d 929 (8th Cir. 2002). 17

Skipper v. South Carolina, 476 U.S. 1 (1986) ...... 9,14

State ex. rel. Deeb v. Campbell, 167 S. 805 (Fla. 1936) 19

Strickland v. Washington, 466 U.S. 668 (1984)..... 5, 22

Sumner v. Shuman, 483 U.S. 66 (1987)........... 8

[Terry] Williams v. Taylor, 529 U.S. 362 (2000) . . passim

Voyles v. Watkins, 489 F. Supp. 901 (N.D. Miss.

eb 6660 0b euen ceuenusanesadessee 12

Wagenmann v. Adams, 829 F.2d 196 (1st Cir. 1987). 22

Woodson v. North Carolina, 428 U.S. 280 (1976).... 7,8

TABLE OF AUTHORITIES — (Continued)

Page

AMERICAN BAR ASSOCIATION MATERIALS

ABA Death Penalty Guidelines,

Guideline 11.4.1.......... Rcondeuvneues passim

ABA Death Penalty Guidelines,

Geaidialins BIBS... cece cece cccccccsens 10

ABA Death Penalty Guidelines,

cD ) eer 10

ABA Death Penalty Guidelines,

Gesidiatinn LIBG... ccc cccccccccccsccsess 10, 20

ABA House of Delegates Resolution 122, Guidelines for

the Appointment and Performance of Counsel in

Death Penalty Cases (1989) ........--++++55 2

ABA Prosecution Function and Defense Function

Standards, Standard 4-4.1 .........-..+555: 13

ABA Prosecution Function and Defense Function

Standards, Standard 4-4.1(a) ............++-+: 15

ABA Standards for Criminal Justice: Providing

Defense Services, Standard 5-1.2 cmt. (3ded. 1992) 2

ABA Standards for Criminal Justice: Prosecution

Function and Defense Function, Standard

Per "Y: f & ‘Raeerrerrrrrrirs 3

American Bar Ass’n, Toward a More Just and Effective

System of Review in State Death Penalty Cases, 40

Am. U. L. Rev. 1 (1900)... . 0... cee ceeeees 2

Model Rules of Prof’| Conduct R. 1.1 (2002) ....... 21, 22

Model Rules of Prof’| Conduct R. 1.1 emt. 5 (2002).. 22

Model Rules of Prof] Conduct R. 1.2 emt. 1 (2002).. 23

Model Rules of Prof’| Conduct R. 1.3 (2002)....... 21, 22

Model Rules of Prof’] Conduct R. 1.4 (2002)....... 22

TABLE OF AUTHORITIES — (Continued)

Page

Model Rules of Prof] Conduct R. 1.4 cmt. 5 (2002). .

Subcommittee on Federal Death Penalty Cases Com-

mittee on Defender Services, Judicial Conference

of the United States, Federal Death Penalty Cases:

Recommendations Concerning the Cost and Qual-

ity of Defense Representation (1998) ..........

RULES AND LEGISLATIVE MATERIALS

Se CE oso sen e duns cheese uceéeseasnees

MISCELLANEOUS

Peter A. Joy & Robert R. Kuehn, Conflict of Interest

and Competency Issues in Law Clinic Practice, 9

Clinical L. Rev. 493 (2002).................

Dorothy O. Lewis et al., Psychiatric, Neurological, and

Psychoeducational Characterisitcs of 15 Death Row

Inmates in the United States, 143:7 Am. J.

Pe IE, « oe ceneeceeadcéesceses

4 Ronald E. Mallen & Jeffrey M. Smith, Legal

Malpractice §30.27 (5th ed. 2000)............

Craig Haney, The Social Context of Capital Murder:

; Social Histories and the Logic of Mitigation, 35

Santa Clara L. Rev. 547 (1995)..............

James W. Ellis & Ruth A. Luckasson, Mentally

Retarded Criminal Defendants, 53 Geo. Wash. L.

es ST Gobcdbesussecedeceseneases

Restatement (Second) of Torts § 299A ...........

Restatement (Third) of the Law Governing Lawyers

DT done ceeentauedeeeasens

Restatement (Third) of the Law Governing Lawyers

PE EE én bbe ducesudeesxcaseees

ae FOE OO mie,

ome

TABLE OF AUTHORITIES — (Continued) 2

age

Restatement (Third) of the Law Governing Lawyers

Welsh S. White, Effective Assistance of Counsel in

Capital Cases: The Evolving Standard of Care,

1993 U. Ill. L. Rev. 323 (1993) .............. 19

vii

— me me

{

—

BRIEF AMICUS CURIAE OF THE AMERICAN BAR

ASSOCIATION IN SUPPORT OF PETITIONER

INTEREST OF THE AMICUS

The American Bar Association (“ABA”) is the principal

voluntary national membership organization of the legal

profession. Its more than 400,000 members include

prosecutors, public defenders, private lawyers, legislators,

law professors, law enforcement and corrections personnel,

law students, and a number of non-lawyer “associates” in

allied fields.'

The ABA has a well-established tradition of advocating

for the ethical and effective representation of all clients. For

nearly one hundred years, the ABA has provided leadership

in legal ethics and professional responsibility, establishing

the foundation for a lawyer’s obligations to his client in all

representations. In 1908 the ABA adopted the original

Canons of Professional Ethics and in 1913 the ABA

established the Standing Committee on Professional Ethics.

In 1969, the ABA adopted the Model Code of Professional

Responsibility that was subsequently adopted by the vast

majority of state and federal jurisdictions. In 1983, the ABA

drafted the Model Rules of Professional Conduct. All but

seven jurisdictions adopted the Model Rules. Finally,

1. Pursuant to Rule 37.6, amicus certifies that no counsel for a party

authored this brief in whole or in part, and that no person or entity, other

than the amicus, its members, or counsel, has made a monetary

contribution to this briefs preparation or submission. The parties have

lodged letters with the Clerk expressing their blanket consent to the filing

of amicus briefs.

Neither this brief nor the decision to file it should be interpreted to

reflect the views of any judicial member of the American Bar Association.

No member of the Judicial Division Council has participated in the

adoption or endorsement of the position in this brief, nor was it circulated

to any member of the Judicial Division Council prior to filing.

building on the work of its “Ethics 2000” Commission, the

- adopted amendments to the Model Rules in February

of 2002.

The ABA takes no position on the death penalty as a

general matter. However, the ABA has adopted numerous

policies concerning the administration of justice and the

effective representation of criminal defendants. The ABA is

especially concerned about the effective representation of

criminal defendants who might be or have been sentenced to

death.” One of the several ABA entities that focus on legal

issues related to capital punishment is the Special

Committee on Death Penalty Representation, which

recruits, trains, and supports volunteer counsel to represent

death row inmates who lack lawyers.

In 1989, the ABA House of Delegates adopted

Resolution 122, Guidelines for the Appointment and

Performance of Counsel in Death Penalty Cases (“ABA

Death Penalty Guidelines”; see App. Al - A17) which were

designed to “amplify previously adopted Association posi-

tions on effective assistance of counsel in capital cases [and

to} enumerate the minimal resources and practices

necessary to provide effective assistance of counsel.” ABA

House of Delegates Resolution 122, Guidelines for the

Appointment and Performance of Counsei in Death Penalty

Cases (1989) (emphasis supplied); see also ABA Standards

for Criminal Justice: Providing Defense Services, Standard

5-1.2 cmt. at 12 (3d ed. 1992) (“ABA Providing Defense

Services Standards”) (“These guidelines are incorporated by

2. See, e.g., ABA Standards for Criminal Justice: Providing Defense

Services, Standard 5-1.2 cmt. at 11 (3d ed. 1992) (“ABA Providing Defense

Services Standards”) (“American Bar Association resolutions have

frequently and consistently taken positions supporting the provision of

quality representation by counsel in capital cases.”); ABA House of

Delegates Resolution 122, Guidelines for the Appointment and

Performance of Counsel in Death Penalty Cases (1989) (“ABA Death

Penalty Guidelines”); American Bar Ass’n, Toward a More Just and

Effective System of Review in State Death Penalty Cases, 40 Am. U. L.

Rev. 1, 13 (1990).

reference into the [ABA Providing Defense Services

Standards).”); ABA Standards for Criminal Justice: Prose-

cution Function and Defense Function, Standard 4-1.2(c)

(3d ed. 1993) (“ABA Prosecution Function and Defense

Function Standards”) (“Defense counsel should comply with

the [ABA Death Penalty Guidelines).”). The Guidelines were

based on the experiences of those who handled post-

conviction cases on collateral review and the lessons learned

from the pattern of inadequate, unprepared, and under-

financed counsel who represented at trial those accused of

capital crimes. The ABA called upon each death penalty

jurisdiction to adopt the ABA Death Penalty Guidelines.*

INTRODUCTION AND

SUMMARY OF ARGUMENT

Lawyers handling capital cases cannot make key

strategic decisions in consultation with their clients that

are either constitutionally or ethically sufficient without

conducting a reasonably complete and thorough investiga-

tion. Such an investigation is necessary with respect to all

matters lawyers handle for their clients, but never more so

than when lawyers and their clients must be properly

informed with regard to the many choices that must be

made concerning the guilt/innocence phase and the penalty

phase of a capital trial. Decision-makers cannot act reason-

ably if they lack an informed basis for choosing one defense

over another, one expert over none, or the presentation of

some facts over others.

In a capital case, effective representation includes a

complete investigation into all areas from which a reason-

able attorney would develop mitigation evidence including,

but not limited to, a client’s cognitive and neurological

condition and history; his family, friends and associates;

school, employment and military records; medical history;

and incarceration and corrections records, as well as other

areas on which counsel is put on notice because of the

3. See id.

particular facts in the case. A reasonably conscientious

investigation into each of those areas is also thorough.

Without such an investigation, counsel and client

cannot effectively choose what, if any, mitigation evidence

to present at trial because they will not know the likely

benefits and costs of presenting it. The scope of pre-trial

investigation is necessarily independent from the scope of

trial presentation; a decision not to present evidence

requires the same knowledge of that evidence and its

implications as a decision to present the evidence. By

conducting a complete and thorough pre-trial investigation

into mitigation evidence, counsel protects the adversarial

nature of the justice system and helps ensure that an

individualized determination regarding the appropriateness

of the death penalty will be made for the defendant.

The ABA respectfully submits that the ABA Death

Penalty Guidelines represent a consensus within the

profession regarding principles to guide capital defense

counsel on the subject of mitigation evidence and the

necessity of investigating the same. Long prior to the trial

this Court now considers, the ABA informed the legal

profession, through the Guidelines, about the scope of

potentially mitigating evidence that could be available and

warned lawyers against incomplete investigations. The

Guidelines reflect the insight of practitioners with years of

experience and the instruction of relevant case law and

statutory provisions. The standard of care set forth in the

Guidelines resulted from the ABA’s study of what reason-

ably performing lawyers were doing and what ineffectively

performing lawyers were not doing. The Guidelines are

proffered to the Court, not as a substitute for counsel’s own

determination of the necessary scope of investigation

presented by the unique character and background of his

client, but rather as an essential starting point from which

counsel should develop the individualized research neces-

sary to humanize the client.

ARGUMENT

I. THE GUARANTEES OF THE SIXTH AND EIGHTH

AMENDMENTS REQUIRE REASONABLE INVES-

TIGATION OF MITIGATION EVIDENCE.

A. The Sixth Amendment Requires Reasonable

Investigation.

The right to effective counsel, which derives from the

right to counsel, guarantees a defendant the assistance

“necessary to ensure that the trial is fair.” Strickland v.

Washington, 466 U.S. 668, 685 (1984); see also Gideon v.

Wainwright, 372 U.S. 335, 344 (1963). As the Court made

clear in Strickland, either the Government or defense

counsel may be responsible for depriving the accused of

the benefit of counsel. 466 U.S. at 686. Thus, either

governmental stumbling blocks or defense counsel’s

ineptitude may undermine defense counsel’s ability to make

strategic and tactical decisions in an independent manner.

See id. at 686, 689.

As identified by this Court, the basic duties of an

effective lawyer are loyalty, avoidance of conflicts of interest,

advocacy (described as the overarching duty), and consulta-

tion and communication with the client; “[c]ounsel also has

a duty to bring to bear such skill and knowledge as will

render the trial a reliable adversarial testing process.” Jd. at

688.

The Strickland presumption of effective representa-

tion’ is premised upon a lawyer’s strategic decision-making

4. Under Strickland, there is a “strong presumption that counsel's

conduct falls within the wide range of reasonable professional assistance.

466 U.S. 668 at 689. Thus, lawyers are presumed effective unless the

defendant can show that counsel’s performance was deficient, L.e.,

“counsel made errors so serious that counsel was not functioning as the

‘counsel’ guaranteed the defendant by the Sixth Amendment, id. at 687,

and also that the deficient performance prejudiced the defense, i.e.,

“counsel’s errors were so serious as to deprive the defendant of a fair trial,

a trial whose result is reliable.” Jd.

to promote his client’s best interest. This presumption fails,

however, if any of the assumptions underlying it fail. For

example, if a lawyer is burdened by a conflict of interest, the

Court can no longer assume that a lawyer is acting in the

best interests of his client. See Holloway v. Arkansas, 435

U.S. 475, 490-91 (1978). And, as demonstrated in Kimmel-

man v. Morrison, 477 U.S. 365 (1986), a decision can be

unreasonable because it is uninformed:

The trial record in this case clearly reveals that

Morrison’s attorney failed to file a timely suppression

motion, not due to strategic considerations, but because,

until the first day of trial, he was unaware of the search

and of the State’s intention to introduce the bedsheet

into evidence. Counsel was unapprised of the search

and seizure because he had conducted no pretrial

discovery. Counsel’s failure to request discovery, again,

was not based on “strategy,” but on counsel’s mistaken

beliefs that the State was obliged to take the initiative

and turn over all of its inculpatory evidence to the

defense and that the victim’s preferences would

determine whether the State proceeded to trial after

an indictment had been returned. . . . The justifications

Morrison’s attorney offered for his omission betray a

startling ignorance of the law - or a weak attempt to

shift blame for inadequate preparation. “[C]ounsel has a

duty to make reasonable investigations or to make a

reasonable decision that makes particular investigations

unnecessary.” Respondent’s lawyer neither investi-

gated, nor made a reasonable decision not to investigate,

the State’s case through discovery. Such a complete lack

of pre-trial preparation puts at risk both the defendant’s

right to an “‘ample opportunity to meet the case of the

prosecution,’” and the reliability of the adversarial

testing process.

Id. at 385 (citations omitted).

For the Strickland presumption to stand, a lawyer’s

decisions must be formulated from a reasonable under-

Pe ce: | eS SFE RS ee 6 nee ree

7 (PM Errse -

: 7

standing of the ‘aw and the facts. See id. As with all

obligations, the duty to investigate reasonably is not an

independent good; rather, it is a means of ensuring that the

adversarial process functions properly and that counsel’s

decisions are reasonable, tactical, and strategic. As a result,

if lawyers’ decisions are based on ignorance, they are

neither reasonable nor strategic. See, e.g., Horton v. Zant,

941 F.2d 1449, 1462 (11 Cir. 1991) (“[OJur case law rejects

the notion that a ‘strategic’ decision can be reasonable when

the attorney has failed to investigate his options and make a

reasonable choice between them.”). If lawyers have not

conducted a reasonable investigation, they do not have a

reasonable understanding of the facts; consequently, they

have nothing to which to apply their legal skill and

judgment.

The ABA Death Penalty Guidelines reflect the profes-

sional normis in this area. They state that counsel should

“conduct independent investigations ... immediately upon

counsel’s entry into the case” and pursue them expedi-

tiously. See ABA Death Penalty Guidelines, Guideline 11.4.1

(“Investigation”) and cmt. (“Without investigation, coun-

sel’s evaluation and advice amount to little more than a

guess.”).

B. The Eighth Amendment Provides the Right to

Present Mitigation Evidence for Use by the

Capital Sentencer.

In 1976, this Court issued five decisions evaluating the

constitutionality of death penalty statutes enacted by the

states: three upholding the statutes, Gregg v. Georgia, 428

U.S. 153, 197, 206 (1976), Proffitt v. Florida, 428 U.S. 242,

251-52 (1976), Jurek v. Texas, 428 U.S. 262, 270-71 (1976),

and two striking down the statutes as constitutionally

infirm: Woodson v. North Carolina, 428 U.S. 280, 303-05

(1976), [Stanislaus] Roberts v. Louisiana, 428 U.S. 325,

333-34 (1976). Ten years later, this Court summarized the

salient distinction between laws that satisfied constitutional

mandates and those that did not:

In the three cases upholding the guided-discretion

statutes, the opinions emphasized the fact that those

capital schemes permitted the sentencing authority to

consider relevant mitigating circumstances pertaining

to the offense and a range of factors about the defendant

as an individual. . . . In the two cases striking down as

unconstitutional mandatory capital-sentencing statutes,

the opinions stressed that one of the fatal flaws in those

sentencing procedures was their failure to permit

presentation of mitigating circumstances for the con-

sideration of the sentencing authority.

Sumner v. Shuman, 483 U.S. 66, 74 (1987) (emphasis

supplied). In Shuman, while holding unconstitutional a

Nevada statute mandating a capital sentence to any life-

term inmate convicted of murder, this Court focused on the

unique nature of mitigating evidence and the constitutional

indispensability of access to that evidence.

A process that accords no significance to relevant

facets of the character and record of the individual

offender or the circumstances of the particular offense

excludes from consideration in fixing the ultimate

punishment of death the possibility of compassionate

or mitigating factors stemming from the diverse frailties

of humankind. It treats all persons convicted of a

designated offense not as uniquely individual human

beings, but as members of a faceless, undifferentiated

mass to be subjected to the blind infliction of the penalty

of death.

Id. at 74-75 (quoting Woodson v. North Carolina, 428 U.S.

280, 304 (1976)). |

This principle has guided this Court in every evaluation

it has made of the constitutionality of a state’s sentencing

scheme. Indeed, the line of cases culminating in Mills v.

Maryland, 486 U.S. 367 (1988),° held that jury instructions

could not serve to preclude jurors from considering

mitigating evidence.

Moreover, this Court has made it clear that it is not

enough for a defendant to be allowed to develop mitigating

evidence. It is not even enough for a jury to be allowed to

hear about and consider mitigating evidence. The sentencer

must be in a position to use the mitigating evidence when

deciding whether or not to impose the death sentence. As

the Court explained:

Penry I did not hold that the mere mention of

“mitigating circumstances” to a capital sentencing jury

satisfies the Eighth Amendment. Nor does it stand for

the proposition that it is constitutionally sufficient to

inform the jury that it may “consider” mitigating

circumstances in deciding the appropriate sentence.

Rather, the key under Penry / is that the jury be able to

“consider and give effect to [a defendant’s mitigating]

evidence in imposing sentence.” For it is only when the

jury is given a “vehicle for expressing its ‘reasoned

moral response’ to that evidence in rendering its

sentencing decision,” that we can be sure that the jury

“has treated the defendant as a ‘uniquely individual

human being’ and has made a reliable determination

that death is the appropriate sentence.”

Penry v. Johnson, 532 U.S. 782, 797 (2001) (internal

citations omitted) (emphasis in original).

5. Lockett v. Ohio, 438 U.S. 586 (1978); Eddings v. Oklahoma, 455 U.S.

104 (1982); Skipper v. South Carolina, 476 U.S. 1, 4 (1986) (concluding

that it was well established that a sentencer may not be precluded from

considering any “aspect of a defendant’s character or record and any of

the circumstances of the offense” and “that a sentencer may not refuse to

consider or be precluded from considering any relevant mitigating

evidence.”) (citations omitted); Hitchcock v. Dugger, 481 U.S. 393 (1987).

Likewise, if an aggravating circumstance - which

constitutionally must serve to narrow the class of

defendants who are death-eligible (see, e.g., Lowenfield v.

Phelps, 484 U.S. 231, 244 (1988)) - is found to be invalid,

then, where the capital sentencing scheme is predicated on

the weighing of aggravating and mitigating circumstances,

there must be an actual reweighing of the remaining

aggravating factors against all of the mitigating evidence,

effectuating the “new sentencing calculus.” Richmond v.

Lewis, 506 U.S. 40, 49 (1992) (reversing); see also [Terry]

Williams v. Taylor, 529 U.S. 362, 397-98 (2000) (citing

Clemons v. Mississippi, 494 U.S. 738, 751-52 (1990)).

In recognition of the critical nature of mitigation

evidence, the ABA Death Penalty Guidelines recommend

careful preparation by counsel for the penalty phase

through proper investigation, consultation with the client,

analysis of the prosecution’s case and evaluation of all

reasonably available evidence in mitigation. See ABA Death

Penalty Guidelines, Guideline 11.4.1 (“Investigation”),

11.8.3 (“Preparation for the Sentencing Phase”), 11.8.5

(“The Prosecutor’s Case at the Sentencing Phase”), and

11.8.6 (“The Defense Case at the Sentencing Phase”).

C. The Guarantees of the Sixth and Eighth

Amendments Cannot be Satisfied Without

Reasonable Investigation of Mitigation Evi-

dence.

Defense counsel’s ineptitude cannot properly be allowed

to prevent the sentencer from hearing, considering, and

giving full effect to the mitigating evidence that it is the

defendant’s right to present. If lawyers do not articulate to

the client the right to have mitigation evidence considered,

the scope of that evidence, and the effect that evidence can

have, the lawyers become obstacles to a constitutionally fair

sentence. Indeed, the fundamental constitutional right to

present “humanizing” information rings hollow unless

defense counsel is aware of, and advises the defendant

about, the breadth of mitigating material about the

defendant that is available for use in the penalty phase.

Because the purpose of the penalty phase is to

determine whether the individual defendant, having been

found guilty, deserves to be put to death, the nature of

mitigating evidence is fundamentally different from the

evidence sought and developed for the guilt/innocence

phase. The defense is entitled to present evidence for the

purpose of humanizing and individualizing the defendant.

In order to develop such evidence for possible presentation,

defense counsel must develop a deeper understanding of the

defendant’s current life and life history than is usually

necessary for the guilt/innocence phase. Moreover, in

deciding what mitigating evidence to present, counsel must

be sensitive to its tone and character.

In Brownlee v. Haley, 306 F.3d 1043 (11™ Cir. 2002), the

state court had postulated that the defendant had no

mitigation evidence to present, and therefore that the

decision to present none had been strategic. The district

court disagreed, pointing out that “Brownlee’s counsel had

not done any investigation into Brownlee’s background or

character, so they did not know what evidence there might

have been to present.” Jd. at 1068. The Eleventh Circuit

affirmed, observing: “counsel’s failure to investigate, obtain,

or present any mitigating evidence to the jury, let alone the

powerful mitigating evidence of Brownlee’s borderline

mental retardation, psychiatric disorders, and history of

drug and alcohol abuse, undermines our confidence in

Brownlee’s death sentence.” Jd. at 1070. It concluded that

counsel’s failure to conduct any mitigation investigation was

inherently unreasonable because it deprived the defendant

of his opportunity to humanize himself before the sentencer.

The Eleventh Circuit’s reasoning is particularly

instructive:

[t]he primary purpose of the penalty phase is to

insure that the sentence is individualized by focusing

[on] the particularized characteristics of the defendant.

By failing to provide such evidence to the jury, though

readily available, trial counsel’s deficient performance

prejudice|s a petitioner’s] ability to receive an indivi-

dualized sentence. In this case, counsel’s absolute

failure to investigate, obtain, or present any evidence,

let alone the powerful, concrete, and specific mitigating

evidence that was available, prevented the jurors from

hearing anything at all about the defendant before

them. An individualized sentence, as required by the

law, was therefore impossible. Instead, the jury was

asked to decide Virgil Brownlee’s fate without hearing

anything about his borderline mental retardation, his

schizotypal personality disorder, his antisocial person-

ality disorder, his many drug and alcohol dependencies,

or his history of seizures.

Id. at 1074 (citations and quotations omitted). See also Caro

v. Woodford, 280 F.3d 1247, 1255 (9° Cir. 2002), cert.

denied, 122 S. Ct. 2645 (2002); Coleman v. Mitchell, 268 F.3d

417, 449-51 (6 Cir. 2001), cert. denied, 122 S. Ct. 1639

(2002); Jermyn v. Horn, 266 F.3d 257, 307-308 (3d Cir.

2001); accord [Terry] Williams v. Taylor, 529 U.S. 362, 395-

96 (2000) (counsel ineffective for failing to uncover and

present evidence of defendant’s “nightmarish childhood,”

borderline mental retardation, and good conduct in prison);

Battenfield v. Gibson, 236 F.3d 1215, 1229 (10 Cir. 2001)

(“(T)here was no strategic decision at all because Shook was

ignorant of various other mitigation strategies he could have

employed.”).®

_ 6. Nor may counsel excuse inaction because they think the

investigation would be fruitless. Counsel may not “sit idly by, thinking

that investigation would be futile.” Voyles v. Watkins, 489 F. Supp. 901,

910 (N.D. Miss. 1980); accord Austin v. Bell, 126 F.3d 843, 849 (6th Cir.

1997) (counsel’s failure to investigate and present mitigating evidence at

the penalty phase of the trial, on grounds that he “did not think that it

would do any good,” constituted ineffective assistance).

;

Il. TO BE REASONABLE, AN INVESTIGATION OF

MITIGATION EVIDENCE SHOULD BE COM-

PLETE AND THOROUGH.

An investigation that may be adequate for the guilt/

innocence phase may be wholly inadequate for the penalty

phase. See, e.g., [Terry] Williams v. Taylor, 529 U.S. 362, 395

(“We are likewise persuaded that the Virginia trial judge

correctly applied both components of [the Strickland)

standard to Williams’ ineffectiveness claim. Although he

concluded that counsel competently handled the guilt phase

of the trial, he found that their representation during the

sentencing phase fell short of professional standards - a

judgment barely disputed by the State in its brief to this

Court.”). See also Marshall v. Hendricks, 307 F.3d 36 (3d

Cir. 2002) (remanding for further evidentiary development,

since the record reflected adequate investigation for the

guilt phase but no investigation for the penalty phase).

The ABA has long stressed that investigation into

mitigation evidence “should comprise efforts to discover all

reasonably available mitigating evidence and evidence to

rebut any aggravating evidence that may be introduced by

the prosecutor.” ABA Death Penalty Guidelines, Guideline

11.4.1(C) (“Investigation”); see also ABA Prosecution

Function and Defense Function Standards, Standard 4-4.1

(“Duty to Investigate”) (“Defense counsel should conduct a

prompt investigation of the circumstances of the case and

explore all avenues leading to facts relevant to the merits of

the case and the penalty in the event of conviction”)

(emphasis supplied)). By implication, these ABA policies

encompass two aspects of investigation: (1) the breadth of

the investigation (where counsel must research); and (2) the

depth of the investigation (how far counsel must research in

any particular area). In other words, the-independent pre-

trial investigation into mitigation evidence must be both: (1)

complete; and (2) thorough.

A. A Reasonable Mitigation Investigation Is

Complete.

The areas of possible mitigation are numerous. They

include any evidence that tends to lessen the defendant’s

moral culpability for the offense or would otherwise support

a sentence less than death. See Penry v. Lynaugh, 492 U.S.

302, 327-28 (1989) (“[I]t is precisely because the punishment

should be directly related to the personal culpability of the

defendant that the jury must be allowed to consider and give

effect to mitigating evidence relevant to a defendant’s

character or record or the circumstances of the offense.”);

Skipper v. South Carolina, 476 U.S. 1, 4-5 (1986) (evidence

of defendant’s positive adaptation to prison is relevant and

admissible mitigating evidence even though it does “not

relate specifically to petitioner’s culpability for the crime he

committed”). Therefore, a reasonable independent pre-trial

investigation into mitigation evidence should be “complete”

in the sense that counsel should examine all areas where

reasonable capital defense attorneys generally search for

mitigation evidence and any other areas of which counsel

are on special notice in their particular case.

The ABA Death Penalty Guidelines, adopted in 1989,

discuss types of mitigation evidence that counsel should

investigate, and sources of that evidence, both through

examination of records and through interviews. Counsel

should:

collect information relevant to the sentencing phase of

trial including, but not limited to: medical history,

(mental and physical illness or injury, alcohol and drug

use, birth trauma and developmental delays); educa-

tional history (achievement, performance and behavior);

special educational needs (including cognitive limita-

tions and learning disabilities); military history (type

and length of service, conduct, special training); employ-

ment and training history (including skills and

performance, and barriers to employability); family

and social history (including physical, sexual or

‘

emotional abuse); prior adult and juvenile record; prior

correctional experience (including conduct on super-

vision and in the institution, education or training, and

clinical services); and religious and cultural influences.

ABA Death Penalty Guidelines, Guideline 11.4.1(D)(2)(C)

(“Investigation”). If it seems unnecessary for the ABA to set

forth such a commonsense catalogue of areas of inquiry,

only a brief perusal of actual “investigations” undertaken

shows that it is, indeed, necessary. Counsel in the instant

case did not make any effort to follow the guidance set forth

in these Guidelines.

B. A Reasonable Mitigation Investigation Is

Thorough.

Thorough investigation and planning for mitigation

must begin immediately upon counsel’s acceptance of

representation. See [Terry] Williams v. Taylor, 529 US.

362, 395-396 (2000) (notwithstanding fact that trial counsel

“competently handled the guilt phase of the trial,” counsel’s

failure to begin to prepare for sentencing phase until a week

before trial fell below professional standards, and counsel

“did not fulfill their obligation to conduct a thorough

investigation of the defendant’s background”); id. at 415

(O’Connor, J., concurring) (“counsel’s failure to conduct the

requisite, diligent investigation into his client’s troubling

background and unique personal circumstances” amounted

to ineffective assistance of counsel); ABA Death Penalty

Guidelines, Guideline 11.4.1 (“Investigation”); ABA Prose-

cution Function and Defense Function Standards, Standard

4-4.1(a) (“Duty to Investigate”) (“Defense counsel should

conduct a prompt investigation of the circumstances of the

case and explore all avenues leading to facts relevant to the

merits of the case and the penalty in the event of

conviction .... The duty to investigate exists regardless of

the accused’s admissions or statements to defense counsel of

facts constituting guilt or the accused’s stated desire to

plead guilty.”).

A perfunctory or de minimis investigation into one or

all areas that a reasonable attorney would research does not

satisfy the guarantees of the Sixth and Eighth Amendments.

Lawyers, in consultation with their client, cannot make a

valid strategic decision about the presentation of mitigating

evidence without a reasonable understanding of all

available mitigating evidence. Skimming through a capital

defendant's psychosocial history or, as here, childhood social

service records, does not provide the necessary depth of

understanding to enable either the lawyers or the client to

make informed strategic decisions.

. _Lawyers need to look reasonably deeply into each

mitigation area they investigate (e.g. family, friends, co-

workers, school records and medical records). Counsel

cannot surrender simply because their first steps are

frustrated, or because they find some information that they

are unlikely to present. As this Court stated in /Terry]

Williams v. Taylor:

Of course, not all of the additional evidence was

favorable to Williams. The juvenile records revealed

that he had been thrice committed to the juvenile

system — for aiding and abetting larceny when he was 11

years old, for pulling a false fire alarm when he was 12,

and for breaking and entering when he was 15. But as

the Federal District Court correctly observed, the failure

to introduce the comparatively voluminous amount of

evidence that did speak in Williams’ favor was not

justified by a tactical decision to focus on Williams’

voluntary confession. Whether or not those omissions

were sufficiently prejudicial to have affected the out-

come of sentencing, they clearly demonstrate that trial

counsel did not fulfill their obligation to conduct a

thorough investigation of the defendant’s background.

529 U.S. at 396.

While this Court has upheld some decisions by counsel

not to present mitigating evidence, the Court has premised

;

such findings on counsel’s having made fully informed

decisions. The Court has looked into the investigation and

counsel’s handling of the results of the investigation before

finding reasonable the decision not to present the evidence

that was found. See Darden v. Wainwright, 477 U.S. 168,

185 (1986) (“The record clearly indicates that a great deal of

time and effort went into the defense of this case; a

significant portion of that time was devoted to preparation

for sentencing.”); Burger v. Kemp, 483 U.S. 776, 790 (1987)

(“Based on these interviews, Leaphart made the reasonable

decision that his client’s interest would not be served by

presenting this type of evidence.”); Bell v. Cone, 535 U.S.

685, ***; 122 S. Ct. 1843, 1853 (2002) (counsel utilized

“what he believed to be the most compelling mitigating

evidence in the case” extensively at trial and weighed the

possibility of recalling wituesses or calling other witnesses

in the penalty phase).

Sometimes, however, even a fully informed decision not

to present mitigation evidence can be unreasonable. Once

counsel are aware that the evidence exists, they must

evaluate its potential benefit or harm by examining it and

subjecting it to proper consideration. See, e.g., Simmons v.

Luebbers, 299 F.3d 929, 938-39 (8"" Cir. 2002) (“By the time

the state was finished with its case, the jury’s perception of

Simmons could not have been more unpleasant. Mitigating

evidence was essential to provide some sort of explanation

for Simmons’s abhorrent behavior. Despite the availability

of such evidence, however, none was presented. Simmons’

attorney’s representation was ineffective.”); accord Karis v.

Calderon, 283 F.3d 1117, 1136 (9 Cir. 2002), cross-petitions

for cert. filed (Sept. 18, 2002) (No. 02-434); (Sept. 10, 2002)

(No. 02-6265) (“Despite his conceded knowledge of this

history, counsel failed to present any evidence of Karis’s

family abuse to the jury.”).

C. A Complete and Thorough Mitigation Investi-

gation Is Conducted by Counsel Indepen-

dently and With the Assistance of Experts.

1. Counsel Should Conduct the Mitigation

Investigation Independently.

Lawyers may not rely upon their own client for all of

the available information that could be proffered to convince

a jury to impose a sentence other than death. Nor may

counsel fail to conduct an investigation because of the

client’s desire not to present mitigating evidence. See, e.g.,

Carter v. Bell, 218 F.3d 581, 596 (6 Cir. 2000) (“The sole

source of mitigating factors cannot properly be that

information which defendant may volunteer; counsel must

make some effort at independent investigation in order to

make a reasoned, informed decision as to their utility. We

find that reluctance on Carter’s part to present a mental

health defense or to testify should not preclude counsel’s

investigation of these potential factors.”); Blanco v.

Singletary, 943 F.2d 1477, 1501-03 (11 Cir. 1991) (counsel

ineffective for “latch[ing] onto” client’s assertions he did not

want to call penalty phase witnesses and failing to conduct

an investigation sufficient to allow their client to make an

informed decision to waive mitigation); ABA Death Penalty

Guidelines, Guideline 11.4.1(C) (“Investigation”) (“The

investigation for preparation of sentencing phase should

be conducted regardless of any initial assertion by the client

that mitigation is not to be offered.”).

Counsel should never underestimate how much shame,

embarrassment, and anguish certain mitigation evidence,

such as childhood sexual abuse or other traumas, mental

retardation or other developmental or mental disorders,

causes defendants. The defendant may have repressed much

of the information. In some cases, the defendant may not

even comprehend the information. Even where a defendant

is aware of the problem and can identify it, the defendant

may have gone to great lengths to keep the information

hidden, and will be at best reluctant to divulge it to a lawyer.

See, e.g., Daniels v. O’Connor, 243 So. 2d 144, 147 (Fla.

1971) (remarking that a mentally ill defendant “might

mislead his counsel as to facts, misinform them as to his

relations with other actors in the legal drama, and be utterly

unreliable as a witness in his own behalf.”) (quoting State

ex rel. Deeb v. Campbell, 167 So. 805, 806 (Fla. 1936)).

Many capital defendants have had prior experience with

defense lawyers, and much of it has been bad, making these

defendants even less forthcoming. See Welsh S. White,

Effective Assistance of Counsel in Capital Cases: The

Evolving Standard of Care, 1993 U. Ill. L. Rev. 323, 338

(1993) (“Often, capital defendants have had bad prior

“experiences with appointed attorneys, leading them to view

such attorneys as ‘part of the system’ rather than advocates

who will represent their interests. . . . [Thus,] a capital

defendant . . . understandably will be reluctant to trust his

attorney.”). Finally, even if the defendant eventually is

willing to share the information, this may not occur until

much later in the representation, long after it will do the

most good.

A history of physical, emotional, and sexual abuse,

combined with neurological and psychiatric impairment,

including mental retardation, is prevalent among defen-

dants charged with violent crimes. See, e.g., Craig Haney,

The Social Context of Capital Murder: Social Histories and

the Logic of Mitigation, 35 Santa Clara L. Rev. 547 (1995);

Dorothy O. Lewis et al., Psychiatric, Neurological, and

Psychoeducational Characteristics of 15 Death Row Inmates

in the United States, 143:7 Am. J. Psychiatry 838-45 (1986).

7. A defendant may, for example, go to great lengths to hide a

developmental delay or mental retardation, but it is imperative that

lawyers be aware of these limitations. See, e.g., James W. Ellis & Ruth A.

Luckasson, Mentally Retarded Criminal Defendants, 53 Geo. Wash. L.

Rev. 414, 484-86 (1985); Atkins v. Virginia, 536 US. 304, 350 (2002)

(holding that mentally retarded defendants may not constitutionally be

executed).

Moreover, many mentally ill defendants self-medicate with

drugs and alcohol, which further compounds their condition.

A defendant’s perceptions and ability to communicate may

be limited by substance abuse, mental illness, or develop-

mental problems.

An additional danger is that counsel, who are untrained

and unadvised in these areas, will not know when or to what

extent such a limitation exists. Thus, what counsel do not

see — and do not secure expert advice on -— may limit the

lawyers’ ability to represent their client and may unreason-

abiy restrict the scope of their investigation. Counsel must

therefore rely on sources of information other than the

client to obtain all potentially relevant mitigation evidence.

2. Counsel Should Conduct the Mitigation

Investigation with the Assistance of Experts.

The duty to consult one or more experts is often. of

critical importance. Lawyers are not equipped to assess a

person’s intelligence or mental state, although a client’s

behavior might put them on notice that these factors are at

issue. See Hull v. Freeman, 932 F.2d 159, 168 (3d Cir.

1991) (“[FJew lawyers possess even a rudimentary under-

standing of psychiatry. They therefore are wholly unquali-

fied to judge the competency of their clients.”). A lawyer is

an expert in the law, not in psychiatry, medicine, or social

work. In addition to the special skills and training required

to discover mitigation evidence, complex or apparently

conflicting records may need to be explained to the

decision-maker by one or more competent experts. See

ABA Death Penalty Guidelines, Guideline 11.8.6 (“The

Defense Case at the Sentencing Phase”). Further, as this

Court has recognized, “when the State has made the

defendant’s mental condition relevant to his criminal

culpability and to the punishment he might suffer, the

assistance of a psychiatrist may well be crucial to the

defendant’s ability to marshal his defense.” Ake v.

Oklahoma, 470 U.S. 68, 80 (1985).

eer

—

It is important for defense counsel to secure expert

advice for another reason: when the case is one in which the

death penalty will be sought, the prosecution regularly calls

experts. See Subcommittee on Federal Death Penalty

Cases Committee on Defender Services, Judicial Conference

of the United States, Federal Death Penalty Cases:

Recommendations Concerning the Cost and Quality of

Defense Representation at 24 (1998) (“Federal Death Penalty

Cases”) (discussing federal death penalty cases), available at

http://www.uscourts. gov/dpenalty/ICOVER.htm (reporting

that “both the prosecution and the defense rely more

extensively on experts in death penalty cases” than in other

criminal cases); People v. Bell, 505 N.E. 2d 365, 371 (Ill. App.

1987) (finding a lack of zealous representation where

defense counsel did not seek an independent evaluation to

counter the psychiatric report proffered by the prosecutor).

The penalty phase, no less than a trial, is an adversary

proceeding. Lawyers must be prepared to meet the

prosecutor’s evidence as well as plead on their client's

behalf.

III. COUNSEL HAS AN ETHICAL OBLIGATION TO

CONDUCT A REASONABLE INVESTIGATION

INTO MITIGATION EVIDENCE.

The ethical obligation of a lawyer in a capital case with

respect to mitigation matters is no different from the ethical

obligation all lawyers have to premise informed strategic

decision-making upon an investigation into the law and

facts sufficient to make the decisions informed ones. This

obligation is reflected in the ABA’s Model Rules of

Professional Conduct and every state’s ethical code, which

uniformly require complete and thorough investigation in

order for a lawyer to provide competent and diligent

counsel. See Model Rules of Prof’! Conduct R. 1.1 & R. 1.3

(2002); see also Peter A. Joy and Robert R. Kuehn, Conflict

of Interest and Competency Issues in Law Clinic Practice, 9

Clinical L. Rev. 493, 497 n.11 (2002).

All lawyers are bound by the obligations of the

applicable rules of professional conduct. As this Court

recognized in Strickland, the function of the ethical codes

is to enforce counsel’s adherence to their basic duties:

loyalty, avoidance of conflicts of interest, advocacy, con-

sultation and communication with the client, and skill and

-knowledge. 466 U.S. at 688. The Model Rules classify these

duties as duties of competence, diligence, and communica-

tion. See Model Rules of Prof] Conduct R. 1.1, 1.3, 1.4.

The Model Rules, like Strickland, employ a standard of

reasonableness to assess a lawyer’s behavior. Using “the

skill and knowledge normally possessed by members of that

profession or trade in good standing . . .” fulfills the duty of

competence. Restatement (Third) of the Law Governing

Lawyers § 52 cmt. b (2000) (quoting Restatement (Second)

of Torts § 299A). A lawyer violates his duties of competence

and diligence when he fails to prepare adequately and fails

to inquire into or suitably evaluate the factual elements of

the case before him. See Restatement (Third) of the Law

Governing Lawyers § 16 cmt. d; § 52 cmt. c (2000); Model

Rules of Prof’] Conduct R. 1.1 cmt. 5 (2002).

When courts evaluate claims of attorney incompetence

or lack of diligence, they look to two things: (1) what is at

stake and (2) whether a lawyer reached a tactical decision

based on the facts and the law, or whether he merely

surmised that a particular course of action should be

undertaken. See Model Rules of Prof! Conduct R. 1.1

emt. 5 (2002) (“[MJajor litigation ... ordinarily require(s]

more extensive treatment than matters of lesser complexity

and consequence.”); 4 Ronald E. Mallen & Jeffrey-M. Smith,

Legal Malpractice § 30.27 at 528 (5th ed. 2000); see also

Wagenmann v. Adams, 829 F.2d 196 (ist Cir. 1987).

Although the duties to be competent and diligent are

distinct from the duty to communicate, a lawyer cannot

fulfill the duty to communicate with his client if he has not

first been competent and diligent. See, eg., Attorney

Grievance Comm'n v. Zdravkovich, 762 A.2d 950, 963-64

(Md. 2000) (failure to exercise diligence leading to the

failure to keep the client reasonably informed). If lawyers do

not conduct an adequate investigation into all potentially

available areas of mitigation evidence that can be presented

in the penalty phase, they will not have sufficient

information to make informed decisions as to those

decisions he will make; nor will the client have sufficient

information to “participate intelligently in decisions con-

cerning the objectives of the representation and the means

by which they are to be pursued.” Model Rules of Prof’

Conduct R. 1.4 emt. 5 (2002).

The duty to communicate takes on added significance as

the role of the client becomes more important to the

decision-making process. That role is recognized in the

rules of professional conduct that specifically address the

allocation of responsibility between the lawyer and the

client. As the Model Rules observe, “{the] client has ultimate

authority to determine the purposes to be served by legal

representation, within the limits imposed by law and the

lawyer’s professional obligations.” Model Rules of Prof’

Conduct R. 1.2 cmt. 1 (2002). Thus, the ABA’s ethical

standards for the profession attach the same importance to

full investigation and consultation with the client as is

reflected in the constitutional jurisprudence of capital

litigation.

CONCLUSION

For the foregoing reasons, the ABA respectfully submits

that the decision of the Fourth Circuit Court of Appeals

should be reversed.

OF COUNSEL:

Lawrence J. Fox

David J. Kessler

D. Alicia Hickok

Noreen P. Alvarado

Emily L. Mirsky

Robin M. Maher

Respectfully submitted,

Alfred P. Carlton, Jr.

American Bar Association

750 N. Lake Shore Drive

Chicago, IL 60611-3038

i eee

American Bar Association

Guidelines for the Appointment and

Performance of Counsel in

Death Penalty Cases

APPENDIX: GUIDELINE 11.3 - DETERMINING THAT

DEATH PENALTY IS BEING SOUGHT

Counsel appointed in any case in which the death penalty is

a possible punishment should, even if the prosecutor has not

indicated that the death penalty will be sought, begin

preparation for the case as one in which the death penalty

will be sought while applying strategies to have the case

designated by the prosecution as a non-capital one.

Commentary:

Jurisdictions may vary in how and when the prosecutor

makes the determination of whether to request the death

penalty. Jurisdictions vary significantly as to when the

defense must be notified of the specific aggravating factors

upon which the prosecution will rely in seeking the death

penalty.’ If there is any possibility that the death penalty

will be sought, counsel should proceed as if it will be sought.

As is set out in Guideline 11.4, early investigation is a

necessity, and should not be put off on some possibility that

the death penalty will not be requested, or that the request

will be dropped at a later point.

1. A list of cases from jurisdictions requiring specific aggravating

factors to be disclosed prior to the guilt/innocence trial and from

jurisdictions with no such requirement is found in Williams v. State,

445 So.2d 798, 804-05 (Miss. 1984) cert. denied sub nom. Williams v.

Mississippi, 469 U.S. 1117; 105 S. Ct. 803; 83 L. Ed.2d 795 (1985). One of

the cases cited is Sireci v. State, 399 So.2d 964 (Fla. 1981). In rejecting the

defendant's claim that aggravating circumstances had to be listed in the

indictment, the court said that “when one is charged with murder in the

first degree, he is well aware of the fact that it is a capital felony

punishable by a maximum sentence of death...,” 399 So.2d at 970. Sireci

has been cited in a later decision precluding the trial court from ruling

prior to the guilt/innocence phase on the propriety of the case being

pursued as a death penalty case, State v. Bloom, 497 So.2d 2, 3 (Fla. 1986).

2. California Attorneys for Criminal Justice & California Public

Defenders Association, CALIFORNIA DEATH PENALTY DEFENSE

MANUAL, Vol. 1, p. A-13 et seq. (1986), citing inter alia Leo v. Superior

Court, 179 Cal. App. 3d 274; 225 Cal. Rptr. 15 (1986) review denied 6/20/

86. In Leo, the court found no bar to the prosecution pursuing the death

penalty despite having initially told the defense (almost four months

ee ee

If required notice has not been given, counsel is “under no

duty to invite a death penalty prosecution.”* While

preparing for a capital case when notice has not been given,

counsel should also prepare to challenge at the sentencing

phase any prosecution efforts that should be barred for

failure to give notice.*

earlier) that death would not be sought, so long as the case was still in the

pretrial stage.

3. Dept. of Public Advocacy, KENTUCKY PUBLIC ADVOCATE

DEATH PENALTY MANUAL, p. 290 (1983).

4. Id.

APPENDIX: GUIDELINE 11.4.1 - INVESTIGATION

A. Counsel should conduct independent investigations

relating to the guilt/innocence phase and to the penalty

phase of a capital trial. Both investigations should begin

immediately upon counsel’s entry into the case and

should be pursued expeditiously.

B. The investigation for preparation of the guilt/innocence

phase of the trial should be conducted regardless of any

admission or statement by the client concerning facts

constituting guilt.

C. The investigation for preparation of the sentencing

phase should be conducted regardless of any initial

assertion by the client that mitigation is not to be

offered. This investigation should comprise efforts to

discover all reasonably available mitigating evidence

and evidence to rebut any aggravating evidence that

may be introduced by the prosecutor.

D. Sources of investigative information may include the

following:

1. Charging Documents:

Copies of all charging documents in the case should be

obtained and examined in the context of the applicable

statutes and precedents, to identify (inter alia):

A. the elements of the charged offense(s), including

the element(s) alleged to make the death penalty

applicable;

B. the defenses, ordinary and affirmative, that may be

available to the substantive charge and to the

applicability of the death penalty; and

C. any issues, constitutional or otherwise, (such as

statutes of limitations or double jeopardy) which

can be raised to attack the charging documents.

2. The Accused:

An interview of the client should be conducted within 24

hours of counsel’s entry into the case, unless there is a good

reason for counsel to postpone this interview. In that event,

the interview should be conducted as soon as possible after

counsel’s appointment.

As soon as is appropriate, counsel should cover A-E below (if

this is not possible during the initial interview, these steps

should be accomplished as soon as possible thereafter):

A. seek information concerning the incident or events

giving- rise to the charge(s), and any improper

police investigative practice or prosecutorial con-

duct which affects the client’s rights;

B. explore the existence of other potential sources of

information relating to the offense, the client's

mental state, and the presence or absence f any

aggravating factors under the applicable death

penalty statute and any mitigating factors,

C. collect information relevant to the sentencing

phase of trial including, but not limited to: medical

history, (mental and physical illness or injury,

alcohol and drug use, birth trauma and develop-

mental delays); educational history (achievement,

performance and behavior) special educational

needs (including cognitive limitations and learning

disabilities); military history (type and length of

service, conduct, and special training); employment

and training history (including skills and perfor-

mance, and barriers to employability); family and

social history (including physical, sexual or emo-

tional abuse); prior adult and juvenile record; prior

correctional experience (including conduct or

supervision in the institution/education or train-

ing/clinical services); and religious and cultural

influences;

D. seek necessary releases for securing confidential

records relating to any of the relevant histories;

and

E. obtain names of collateral persons or sources to

verify, corroborate, explain and expand upon

information obtained in (C) above.

3. Potential Witnesses:

Counsel should consider interviewing potential witnesses,

including:

A. eyewitnesses or other witnesses having purported

knowledge of events surrounding the offense itself;

B. witnesses familiar with aspects of the client’s life

history that might affect the likelihood that the

client committed the charged offense(s), possible

mitigating reasons for the offense(s), and/or other

mitigating evidence to show why the client should

not be sentenced to death; and

C. members of the victim’s family opposed to having

the client killed. Counsel should attempt to conduct

interviews of potential witnesses in the presence of

a third person who will be available, if necessary, to

testify as a defense witness at trial. Alternatively,

counsel should have an investigator or mitigation

specialist conduct the interviews.

4. The Police and Prosecution:

Counsel should make efforts to secure information in the

possession of the prosecution or law enforcement autho-

rities, including police reports. Where necessary, counse!

should pursue such efforts through formal and informal

discovery unless a sound tactical reason exists for not doing

so.

5. Physical Evidence:

Where appropriate, counsel should attempt a prompt

request to the police or investigative agency for any physical

evidence or expert reports relevant to the offense or

sentencing.

6. The Scene:

Where appropriate, counsel should attempt to view the

scene of the alleged offense. This should be done under

circumstances as similar as possible to those existing at the

time of the alleged incident (e.g., weather, time of day, and

lighting conditions).

7. Expert Assistance:

Counsel should secure the assistance of experts where it is

necessary or appropriate for:

A. preparation of the defense;

B. adequate understanding of the prosecution’s case;

C. rebuttal of any portion of the prosecution’s case at

the guilt/innocence phase or the sentencing phase

of the trial; and

D. presentation of mitigation.

Experts assisting in investigation and other preparation of

the defense should be independent and their work product

should be confidential to the extent allowed by law. Counsel

and support staff should use all available avenues including

signed releases, subpoenas, and Freedom of Information Act

requests, to obtain all necessary information.

Commentary:

Counsel has a duty to investigate the case before

recommending that a guilty plea be taken (or sought) or

proceeding to trial.’ This duty is intensified (as are many

duties) by the unique nature of the death penalty” and is

1. ABA Standards, The Defense Function, Standards 4-4.1 and 4-6.1;

NLADA, Performance Guidelines For Criminal Defense Representation

(Draft Guideline 4.1).

2. Strickland v. Washington, 466 U.S. 668, 706; 104 S. Ct. 2052; 80

L.Ed.2d 674 (1984) (Brennan, J., dissenting in part, concurring in part).

broadened by the bifurcation of capital trials into two

phases.”

The need for a standard mandating investigation for the

sentencing phase is underscored by cases in which counsel

failed to recognize the importance of this aspect of death

penalty litigation. Inexperienced counsel — and even counsel

experienced in non-capital cases - “may underestimate the

importance of developing meaningful sources of mitigating

evidence...”* See Guideline 11.8 and commentary.

Counsel’s duty to investigate is not negated by the expressed

desires of a client. Nor may counsel “sit idly by, thinking

that investigation would be futile”.° The attorney must first

evaluate the potential avenues of action and then advise the

client on the merits of each.® Without investigation,

counsel’s evaluation and advice amount to little more than

a guess.

Resources that counsel needs to pursue a proper investiga-

tion should be sought early in the case. The type and

amount of assistance that can or will be made available aries

from jurisdiction to jurisdiction; counsel should

3. See Streib, Execution Under the Post-Furman Capital Punishment

Statutes: the Halting Progress from “Let’s Do It” to “Hey, There Ain't No

Point in Pulling So Tight”, 15 Rutgers L. J. 443, 446 (1984).

4. Devine, et al, Special Project: The Constitutionality of the Death

Penalty in New Jersey, 15 Rutgers L.J. 261, 293 (1984).

5. Voyles v. Watkins, 489 F. Supp. 901, 910 (N.D. Miss. 1980). People v.

Ledesma, 43 Cal.3d 171, 200-204, 207-209, 221-223; 238 Cal. Rptr. 404;

729 P.2d 839 (1987).

6. Thompson v. Wainwright, 787 F.2d 1447, 1451 (11th Cir. 1986),

citing inter alia Gray v. Lucas, 677 F.2d 1986, 1093-1094 (5th Cir. 1982).

Despite its recognition of the need for investigation, the Thompson court

cited Strickland v. Washington, supra, n. 2, and declined to reverse where

the attorney had failed to investigate the co-defendant’s background, and

had not contacted for sentencing purposes the psychiatrists who had

previously examined the defendant.

demand on behalf of the client all necessary experts for

preparation of both phases of trial.’

Individuals assisting in investigation should be within the

confidences of the client and defense counsel, and should not

be required to disclose information discovered during the

investigation except at the direction of counsel.

Immediate contact with the client is necessary not only to

gain information needed to secure evidence and crucial

witnesses, but to try to prevent uncounselled confessions” or

admissions:

Don’t forget, the defendant is a part of this team. From

the initial interview forward[,] the bond you develop

with the defendant is important in how you are able to

handle the case. Your initial interview will often, by

necessity, be hasty. Strongly admonish your client to

talk or write to no one regarding the case. A former

client of this author is sitting on death row in part

because of devastatingly harmful letters that client

wrote after the appointment of counsel. This admoni-

tion should be renewed regularly during trial, after

conviction, and throughout the appellate process. In the

event of a retrial, damaging post-trial statements may

crucify your client.

As soon as time permits arrange for an in-depth

interview with your client with an eye toward both

7. The Supreme Court has recognized that indigent defendants are

entitled to some forms of expert assistance, see Ake v. Oklahoma, 470 U.S.

68: 105 S. Ct. 1087; 84 L.Ed. 2d 53 (1985). Some states provide funds by

statute for preparation of a capital case, e.g., California Penal Code §

a the California statute providing funds for defense investigation in

capital cases shields even the request for assistance from the prosecutor,

Cal. Penal Code § 987.9; see People v. Corenevskv, 36 Cal.3d 307, 321; 204

Cal. Rptr. 165; 682 P.2d 360 (1984). nf

9. See Gradess, The Road From Scottsboro, Vol. 2, #2 Criminal Justice

(Magazine of the ABA Section on Criminal Justice), p. 1, 45 (Summer

1987).

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developing the necessary trust and eliciting as many

facts as you can to start you on the road to formulating

your defense. . . '° é

All

APPENDIX: GUIDELINE 11.8.3 - PREPARATION

FOR THE SENTENCING PHASE

A. As set out in Guideline 11.4.1, preparation for the

Client interviews are vital for establishing the trust between

attorney and client necessary to allow the attorney to learn

the facts. Counsel cannot frame an adequate defense

without knowing what is likely to develop at trial, including

information that is or that appears to be incriminating.'!

10. Indiana Public Defender Council, INDIANA DEATH PENALTY

DEFENSE MANUAL, Vol. 1, p. 1.1-6 (1985).

11. ABA Standards, The Defense Function, Standard 4-3.2

commentary.

sentencing phase, in the form of investigation, should

begin immediately upon counsel’s entry into the case.

Counsel should seek information to present to the

sentencing entity or entities in mitigation or explana-

tion of the offense and to rebut the prosecution’s

sentencing case.

Counsel should discuss with the client early in the case

the sentencing alternatives available, and the relation-

ship between strategy for the sentencing phase and for

the guilt/innocence phase.

Prior to the sentencing phase, counsel should discuss

with the client the specific sentencing phase procedures

of the jurisdiction and advise the client of steps being

taken in preparation for sentencing. Counsel should

discuss with the client the accuracy of any information

known to counsel that will be presented to the

sentencing entity or entities, and the strategy for

meeting the prosecution’s case.

If the client will be interviewed by anyone other than

people working with defense counsel, counsel should

prepare the client for suck. interview(s). Counsel should

discuss with the client the possible impact on the

sentence and later potential proceedings (such as

appeal, subsequent retrial or resentencing) of state-

ments the client may give in the interviews.

Counsel should consider, and discuss with the client,

the possible consequences of having the client testify or

make a statement to the sentencing entity or entities.

In deciding which witnesses and evidence to prepare for

presentation at the sentencing phase, counsel should

consider the following:

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1. witnesses familiar with and evidence relating to the

client's life and development, from birth to the time

of sentencing, who would be favorable to the client,

explicative of the offense(s) for which the client is

being sentenced, or would contravene evidence

presented by the prosecutor;

2. expert witnesses to provide medical, psychological,

sociological or other explanations for the offense(s)

for which the client is being sentenced, to give a

favorable opinion as to the client’s capacity for

rehabilitation, etc. and/or to rebut expert testimony

presented by the prosecutor;

3. witnesses with knowledge and opinions about the

lack of effectiveness of the death penalty itself: and

4. witnesses drawn from the victim’s family or

intimates who are willing to speak against killing

the client. c

Commentary:

All commentary concerning sentencing is found after

Guideline 11.8.6, the last Guideline in subsection 11.8.

— a =

ote

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> ECU-

APPENDIX: GUIDELINE 11.8.5 - THE PROS

TOR’S CASE AT THE SENTENCING PHASE

A. Counsel should attempt to determine at the earliest

possible time what aggravating factors the prosecution

will rely on in seeking the death penalty and what

evidence will be offered in support thereof (Guideline

11.3). If the jurisdiction has rules regarding notification

of these factors, counsel should object to any non-

compliance, and if such rules are inadequate, should

consider challenging the adequacy of the rules.

B. If counsel determines that the prosecutor plans to rely

on or offer arguably improper, inaccurate or misleading

evidence in support of the request for the death penalty,

counsel should consider appropriate pretrial or trial

strategies in response.

Commentary:

All commentary concerning sentencing is found after

Guideline 11.8.6, the last Guideline in subsection 11.8.

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APPENDIX: GUIDELINE 11.8.6 - THE DEFENSE

CASE AT THE SENTENCING PHASE

A. Counsel should present to the sentencing entity or

entities all reasonably available evidence in mitigation

unless there are strong strategic reasons to forego some

portion of such evidence.

B. Among the topics counsel should consider presenting

are:

1. medical history (including mental and physical

illness or injury, alcohol and drug use, birth trauma

and developmental delays);

2. educational history (including achievement, perfor-

mance and behavior), special educational needs

(including cognitive limitations and learning dis-

abilities) and opportunity or lack thereof:

3. military service, (including length and type of

service, conduct and special training);

4. employment and training history (including skills

and performance and barriers to employability);

5. family and social history (including physical, sexual

or emotional abuse, neighborhood surroundings

and peer influence); and other cultural or religious

influence, professional intervention (by medical

personnel, social workers, law enforcement person-

nel, clergy or others) or lack thereof: prior

correctional experience (including conduct or super-

vision in institutions/education or training/clinical

services);

6. rehabilitative potential of the client:

7. record of prior offenses (adult and juvenile),

especially where there is no record, a short record

or a record, of non-violent offenses; and

8. expert testimony concerning any of the above and

the resulting impact on the client, relating to the

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offense and to the client's potential at the time of

sentencing.

C. Counsel should consider all potential methods for

offering mitigating evidence to the sentencing entity

or entities, including witnesses, affidavits, reports

(including, if appropriate, a defense presentence report

which could include challenges to inaccurate, mislead-

ing or incomplete pe ta mo pean

presen report and/or prosecution,

well oan favorable to the client), letters and

public records.

D. Counsel may consider having the client testify or speak

during the closing argument of the sentencing phase.

Commentary:

teacing proceedings in a capital case resemble a separate

proceedings.’ The Constitutional due process right to

present evidence, as well as the right to counsel, to confront

the witnesses against the defendant, and to not be placed

twice in jeopardy, adhere to capital sentencing proceedings.

Experienced criminal counsel familiar with sentencing

practices in non-capital cases may not recognize the

different form of advocacy required at a death penalty

sentencing trial.*

1. Bullington v. Missouri, 451 U.S. 430, 438-446; 101 S. Ct. 1852; 68

2d 270 (1981).

“a i Specht v. Patterson, 386 U.S. 605; 87 S. Ct. 1209; 18 L.Ed.2d 326

(1967); Lockett v. Ohio, 438 U.S. 586, 604; 98 S. Ct. 2945, 2981; 57 L.Ed.2d

973 (1978). There is, however, no constitutional right to have a jury

decide the sentence, Spanziano v. Florida 468 U.S. 447; 104 S. Ct. 3154;

82 L.Ed.2d 340 (1984). | |

3. Goodpaster, The Trial for Life:-Effective Assistance of Counsel in

Death Penalty Cases, 58 N.Y.U.L. Rev. 274 (1983), cited in Weinheimer

and Millman, Legal Issues Unique to the Penalty Trial, The Champion, p.

33 reprinted in California Attorneys for Criminal Justice & California

Public Defenders Association, CALIFORNIA DEATH PENALTY

DEFENSE MANUAL, Vol. 11, p. H-14 (1986).

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The evidence to be presented by the defense — indeed, the

whole theory of the proceeding — at the sentencing phase

stands outside normal criminal trial practice. Attorneys

skilled in narrowing the focus of trial to exclude irrelevant

references to the life and character of a client may find

themselves unprepared for the sentencing phase of a capital

case where the life and character of the client may have to be

revealed in detail. The assistance of one or more experts

(e.g., social worker, psychologist, psychiatrist, investigator,

etc.) may be determinative as to outcome,’ as set out in

Guideline 11.4.1(A) and 11.4.1(7). Unless a plea bargain

has resulted in a tee on the record that the death

penalty will not be imposed, full preparation for a

sentencing trial must be made in every case.

Counsel should consider contacting the victim’s family

concerning the sentencing phase. The 1987 Supplement to

the CALIFORNIA DEATH PENALTY DEFENSE MAN-

UAL discussed the power of testimony by a victim’s relatives

that they do not want the defendant killed. It also discusses

the fact that the legal basis for such testimony is not yet

clearly established.°

4. Stebbins and Kenny, Zen and the Art of Mitigation Presentation, or,

the Use of Psycho-Social Experts in the Penalty Phase of a Capital Trial.

The Champion ‘Aug 1986) reprinted in CALIFORNIA DEATH

PENALTY DEFENSE MANUAL, supra n. 3, Vol. 11, p. 87 H-37 et seg.

(1987 Supp.).

5. Indiana Public Defender Council, INDIANA DEATH PENALTY

DEFENSE MANUAL, Vol. 11, p. 6-1 (1985).

6. CALIFORNIA DEATH PENALTY DEFENSE MANUAL, supra n.

4, Vol. 11, p. 87 H-89 (1987 Supp.); see also Robison v. Maynard, 829 F.2d

1501 (10th Cir. 1987), disallowing such testimony.

Roy Persons, whose wife Carol was murdered, said in a letter to the Sv.

Petersburg (Florida) Times that he would have been “willing to testify in

court that I or Carol would not have wanted (the defendant) to be sent to

his death” but that his understanding was that such testimony “would

not have been legal.” Taken from “The Victims Speak”, a pamphlet

printed by the Institute for Southern Studies.

= oo — we

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Along the same lines, counsel may consider seeking

testimony from witnesses familiar with the actual process

of an execution or having some expertise on the low

deterrent value of capital punishment.’ The legal basis for

such testimony is also not yet clearly established.” But while

counsel cannot be required to offer evidence held inad-

missible by prevailing case law, counsel should consider

whether such evidence might have value in a given case and

whether (if it is barred by current case law in the

jurisdiction) the question of admissibility should be

preserved for appeal.

Obviously, the uniqueness of every client makes guidelines

as to the sentencing phase a starting point, not a checklist.”

However, counsel in every capital case should consider

strategies offered by other attorneys, discussed in the

literature or otherwise available for consideration. Counsel

may not choose, without investigation and preparation, to

sit pack and do nothing at sentencing.'” Even the client may

not be able to mandate that counsel present no mitigation,

for courts have found that public policy should not allow

state-assisted suicide."’

7. Balske, New Strategies for The Defense of Capital Cases, 13 Akron

Law Rev. 331, 358, 359 (1979) reprinted in the CALIFORNIA DEATH

PENALTY DEFENSE MANUAL, supra n. 3.

8. People v. Harris, 28 Cal.3d 935, 962; 171 Cal. Rptr. 679, 623 P.2d 240

(1981) (trial court properly excluded testimony about how the death

penalty is carried out). State v. Jenkins, 15 Ohio St. 3d 164; 473 N_E.2d

264, 289 (1984) (testimony on non-deterrent value of the death penalty

not admissible). See cases cited in Dept. of Public Advocacy, KENTUCKY

PUBLIC ADVOCATE DEATH PENALTY MANUAL, p. 328-333 (1983).

9. CALIFORNIA DEATH PENALTY DEFENSE MANUAL, supra n.

3, Vol. 11, p. H-4.

10. Pickens v. Lockhart, 714 F.2d 1455, 1467 (8th Cir. 1983).

11. People v. Deere, 41 Cal. 3d 353, 365; 222 Cal. Rptr. 13; 710 P.2d 925

(1985).

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Because the scope of evidence admissible in mitigation is

generally broader than that admissible in aggravation,'*

counsel may be seeking to adduce evidence of a type

prohibited to the prosecution. Counsel should be prepared

to object to inadmissible evidence proffered by the

prosecutor. Counsel should also be prepared to object to

information regarding the client that might be admissible in

a non-capital sentencing proceeding but would constitute a’

denial of due process in the ratified atmosphere of a death

penalty case.'” Assertions that the client has engaged in

unadjudicated criminal conduct have been held to deny due

process in at least some death penalty cases,'* while

information regarding uncharged crimes may be admissible

in the less formal sentencing proceedings occurring in non-

capital cases.

The goal at the sentencing phase is to help the jury see the

client as someone they do not want to kill. The decision as to

whether to have the client testify can be crucial. Especia!ly if

the client is not to testify for some strategic reason, counsel

may consider having the client speak during the closing

argument or to otherwise speak in the jury’s presence.'°

12. See, e.g., Green v. Georgia, 442 US. 95; 99 5. Ct. 2150; 60 L.Ed.2d

738 (1979) ‘hearsay offered by the defendant can come in where there

were indicia of reliability, as a matter of due process).

13. The United States Supreme Court recently held that victim impact

statements relating to the effect of a killing on the victim's family may not

be used by the prosecution at the sentencing phase of a death penalty

case. The Court specifically distinguished death cases from all others, see

Booth v. Maryland, 482 U.S. 496 (1987); 107 S. Ct. 2529; 96 L.Ed.2d 440

(1987).

14. State v. McCormick, 22 Ind. 272; 397 N.E.2d 276 (1979); but see

Milton v. Procunier, 744 F.2d 1091 (5th Cir. 1984).

15. See, e.g., Balske, Putting It All Together: The Penalty-Phase Closing

Argument. The Champion, (March 1984) p. 47, reprinted in the

CALIFORNIA DEATH PENALTY DEFENSE MANUAL, supra un. 3, p.

H-227.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.