Posted by Jonathan Adler:
More Death Penalty Dissension on the Sixth Circuit:
http://volokh.com/archives/archive_2006_07_23-2006_07_29.shtml#1153939690
The disagreements over death penalty litigation continue on the U.S.
Court of Appeals for the Sixth Circuit. The latest round comes from
the case of Poindexter v. Mitchell, in which a three-judge panel
unanimously upheld a capital defendant's claim that he received
ineffective assistance of counsel during the sentencing phase, but in
the process produced four opinions.
In 1985, Dewaine Poindexter was convicted of two counts of aggravated
murder, among other crimes, and sentenced to death. After years of
litigation, Poindexter filed a federal habeas claim. Among other
things, Poindexter alleged ineffective assistance of counsel during
the sentencing phase becase his counsel failed to conduct an adequate
investigation of potentially mitigating evidence. On Monday, the Sixth
Circuit upheld this claim, vacating Poindexter's death sentence
pending a new sentencing proceeding in a [1]unanimous opinion authored
by Judge Suhrheinrich.
The disagreement among the judges was not over whether Poindexter
should prevail. All three judges on the panel -- Suhrheinrich,
Daughtrey, and Boggs -- agreed that existing precedent was clear. They
disagreed over whether it was wise -- and how existing precedents
might influence strategic choices made by defense attorneys in capital
cases.
Chief Judge Boggs wrote separately "to note the continuing oddity of
the circumstances of cases such as this." Boggs continued:
To put it bluntly, it might well appear to a disinterested observer
that the most incompetent and ineffective counsel that can be
provided to a convicted and death-eligible defendant is a
fully-investigated and competent penalty-phase defense under the
precedents of the Supreme Court and of our court. That is, the
primary means by which a prisoner escapes the affirmance of a death
sentence in this circuit has become a finding that �ineffective�
counsel was provided at the penalty phase. Thus, if counsel
provides fully-effective assistance, and the jury simply does not
buy the defense, then the defendant is likely to be executed.
However, if counsel provides ineffective assistance, then the
prisoner is likely to be spared, certainly for many years, and
frequently forever. [citations omitted]
Boggs further noted that whether "mitigating evidence" will reduce the
likelihood that a capital defendant receives the death penalty is
wholly speculative. The end result is that defense attorneys face a
"moral hazard" in which any "sensible attorney" would be likely to
reason as follows:
If I make an all-out investigation, and analyze and present to the
jury every possible mitigating circumstance, especially of the
�troubled childhood� variety, it is my professional judgment that I
may thereby increase the probability of this extremely repellant
client escaping the death penalty from 10% to 12%. On the other
hand, if I present reasonably available evidence that I think has
as good a chance as any other in securing the slim chance of mercy
from the jury, I will have a 50-99% chance of overturning the
extremely likely death penalty judgment 10-15 years down the road.
I will thus have secured many additional years of life for the
client, and he may very likely avoid capital punishment altogether.
Boggs made clear that he was not accusing the attorneys in this (or
any other) case of making such a judgment, "consciously or
unconsciously." Nonetheless, he noted, "our jurisprudence has made
such a line of reasoning virtually inevitable for any defense
attorney."
Judge Daughtrey took exception to Cheif Judge Boggs's concurrence, so
she penned one of her own "in order to express my dismay at Judge
Boggs's unjustified attack directly on both the cpiatal defense bar
and indirectly on the members of this court." Daughtrey continued:
For the chief judge of a federal appellate court to state that it
is �virtually inevitable� that �any mildly-sentient defense
attorney� would consider playing the equivalent of Russian roulette
with the life of a client is truly disturbing. Such a comment is an
affront to the dedication of the women and men who struggle
tirelessly to uphold their ethical duty to investigate fully and
present professionally all viable defenses available to their
clients. It also silently accuses the judges on this court of
complicity in the alleged fraud by countenancing the tactics
outlined.
According to Dughtrey, if there are problems with finality in death
penalty litigationk it is more likely due to the fact that "those
lawyers representing the absolute pariahs of society are frequently
hamstrung by a critical lack of relevant experience, an obvious lack
of time and resources, or both."
Not to be left out, Judge Suhrheinrich also wrote his own brief
concurrence, though only to agree with Chief Judge Boggs.
I agree with Judge boggs. I think Judge Boggs accurately points out
the difficulties with the current legal doctrine concerning
ineffective assistance of counsel in death penalty cases at the
penalty phase. I do not share Judge Daughtrey�s views of defense
counsel in these types of case as my experiences have been
different. [citations omitted]
This is not certainly not the last episode of Sixth Circuit dissension
in death penalty cases, so stay tuned for the next chapter.
References
1. http://www.ca6.uscourts.gov/opinions.pdf/06a0257p-06.pdf
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