Representation

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]