Law Regarding Capital Representation

“[I]n our adversary system of criminal justice, any person haled into court, who is too poor to hire a lawyer, cannot be assured a fair trial unless counsel is provided to him.”

Gideon v. Wainwright (1963)

U.S. Supreme Court decisions addressing representation fall into two major categories: those that define the parameters of the right to counsel and those that discuss standards for counsel’s performance. Both of these lines of cases are important in the discussion of capital-defense practices.

(1) Right to Counsel for Indigent Criminal Defendants

Even though the right to counsel in criminal proceedings is guaranteed by the plain language of the Sixth Amendment to the U.S. Constitution, for most of U.S. history, this right only protected criminal defendants in federal prosecutions. The first case to extend the right to counsel to indigent defendants facing state charges was a capital case out of Alabama known as the Scottsboro case. In 1931, nine Black boys and young men were charged with the capital crime of rape after two white women accused them of rape. “[U]ntil the very morning of the trial, no lawyer had been named or definitely designated to represent the defendants,” and they were quickly convicted and sentenced to death.[i]

The case made its way to the Supreme Court and, in Powell v. Alabama (1932), the Court held that “a defendant, charged with a serious crime, must not be stripped of his right to have sufficient time to advise with counsel and prepare his defense.”[ii] The Court explained that “during perhaps the most critical period of the proceedings against these defendants, that is to say, from the time of their arraignment until the beginning of their trial, when consultation, thoroughgoing investigation and preparation were vitally important, the defendants did not have the aid of counsel in any real sense, although they were as much entitled to such aid during that period as at the trial itself.”[iii]

Three decades later, in Gideon v. Wainwright (1963), the Court extended the right to counsel to all indigent criminal defendants charged by states with a felony at the trial level. Although Gideon was not a capital case, the Court recognized that “in our adversary system of criminal justice, any person haled into court, who is too poor to hire a lawyer, cannot be assured a fair trial unless counsel is provided for him. This seems to us to be an obvious truth.”[iv]

In Douglas v. California (1963), the Supreme Court expanded the right to counsel to the stage at which a defendant appeals his or her conviction and sentence. This stage of the process, called a “direct appeal,” generally focuses only on the record from the trial, and the appeal lawyer typically does not conduct any additional investigation. The Court decided that when state law provides a defendant the right to a direct appeal, it must also provide an indigent defendant with a lawyer. Relying on the due process and equal protection clauses of the Fourteenth Amendment, rather than the Sixth Amendment right to counsel at trial, the Court wrote: “where the merits of the one and only appeal an indigent has as of right are decided without benefit of counsel, we think an unconstitutional line has been drawn between rich and poor.“

In Murray v. Giarratano (1989), the Supreme Court refused to find that capital defendants had a constitutional right to counsel during their state post-conviction proceedings, which is the process that occurs after direct appeal and requires a thorough investigation of the facts regarding the underlying conviction and sentence. During state post-conviction proceedings, claims are raised related to state misconduct (such as police or prosecutors who failed to disclose exculpatory information), trial counsel’s ineffectiveness, jurors who may have been biased, or even judicial misconduct. The fact that there was no constitutional right to an attorney during post-conviction proceedings had serious implications for condemned prisoners because if a claim was not raised in state court, the federal courts could not review the claim either; many prisoners have had egregious constitutional violations that were never reviewed by the courts and they were subsequently executed.[v]

Several decades later, in Martinez v. Ryan (2012), the Supreme Court decided that even though there is no constitutional right to adequate representation during post-conviction proceedings, the federal courts will under very limited circumstances review the effectiveness of a post-conviction lawyer’s representation. The Court ruled that if a defendant alleges that his or her trial lawyer was ineffective and that the defendant failed to raise that ineffectiveness claim in state court because he or she also was provided ineffective post-conviction counsel, then the federal court may review the performance of state post-conviction counsel. If state post-conviction is found to have been ineffective, then the federal court is permitted to review trial counsel’s representation.

(2) Evaluating the Effectiveness of Counsel

After the right to counsel was established, the Supreme Court issued a series of decisions that evaluated the effectiveness of trial counsel. Strickland v. Washington (1984) established a framework for evaluating attorney performance in capital cases. Strickland requires that the defendant prove that counsel’s representation was deficient and that there is a reasonable probability that, but for counsel’s deficiency, the outcome of the trial would have been different. Ineffective assistance of counsel is established only when the defendant has satisfied both prongs of the Strickland test. This is a high standard, and the Court explained that defense counsel will be “strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment.”[vi]

In determining what constitutes deficient representation in the penalty phase of a death-penalty trial, the Court has focused on the extent to which capital defense counsel investigated potential mitigating evidence on behalf of their clients. In Williams v. Taylor (2000) and Wiggins v. Smith (2003), the Court ruled that failure to conduct a thorough investigation of the client’s background may constitute ineffective assistance of counsel. The Court further defined defense counsel’s obligation to investigate in Rompilla v. Beard (2005), which held that even when a capital defendant and his family members have suggested that no mitigating evidence is available, his lawyer is bound to make reasonable efforts to obtain and review material that counsel has reason to believe the prosecution will rely on as evidence of aggravation at the trial’s sentencing phase. The Court has also held that even if a lawyer puts on some mitigating evidence at trial, that lawyer’s inadequate performance may still undermine the outcome of the sentencing if the critical mitigating facts were not investigated and presented to the jury.[vii]


[I] Powell v. Alabama, 287 U.S. 45, 56 (1932).

[ii] Powell v. Alabama, 287 U.S. 45, 59 (1932).

[iii] Powell v. Alabama, 287 U.S. 45, 57 (1932).

[iv] Gideon v. Wainwright, 372 U.S. 335, 344 (1963)

[v] See, e.g., Texas Executes Juan Castillo Without a Hearing on His Claims of Innocence and Ineffective Representation; Texas Set to Execute Christopher Wilkins Despite Lawyers’ Conflicts of Interest; Federal Court Grants Lethal-Injection Stay to Alabama Prisoner With Claims of Attorney Abandonment, Flawed Forensics. See also BRIEF OF AMICUS CURIAE THE INNOCENCE NETWORK IN SUPPORT OF PETITIONER, Martinez v. Ryan, No. 10 – 1001 (Mar. 20, 2012) (not­ing that inef­fec­tive assis­tance of coun­sel is a con­tribut­ing fac­tor to wrong­ful convictions).

[vi] Strickland, 466 U. S. at 690.

[vii] Sears v. Upton, 561 U.S. 945 (2010).