Christopher A. Mallett, Ph.D., J.D., LISW
Ineffectiveness of Death Row Juvenile Offenders’ Counsel
Criminal Law Bulletin Vol. 41(3) 2005
Ineffectiveness of Death Row Juvenile Offenders’ Counsel: A Constitutional Tragedy
Christopher A. Mallett, Ph.D., J.D., LISW
Assistant Professor
Cleveland State University
2121 Euclid Avenue, CB #324
Cleveland Ohio 44115-2214
216-523-7514
c.a.mallett@csuohio.edu
A. Introduction
Since 1976, the United States Supreme Court has not once held that relevant mitigating
factors may be ignored in capital sentencing decisions.1 The Court has consistently found that
individualized consideration of relevant mitigating factors must precede imposition of a death
sentence.2 The Court’s insistence on weighing mitigating factors underscores the distinct
functions of bifurcating the capital trial and sentencing phases.3 The Court has found that capital
punishment is different from non-capital offenses, for a determination that death is appropriate
must be arrived at through a balancing process not required for other criminal sentences.4
These mitigating factors insisted on by the Court must be considered at death sentencing.
Cumulative data has found that socio-historical mitigating evidence was presented in less than
half of all current death-sentenced juvenile offenders’ trials.5 Twenty percent of these juries
1
See Dinah A. Robinson, & Otis H. Stephens, Patterns of Mitigating Factors in Juvenile Death Penalty Cases, 28
CRIM. L. BULL 246, 248 (1992).
2
See Lockett v. Ohio, 438 U.S. 586, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978); Bell v. Ohio 438 U.S. 637 (1978);
Eddings v. Oklahoma, 455 U.S. 104, 102 S.Ct. 869, 71 L.Ed.2d 1 (1982); Sumner v. Shuman, 107 S.Ct. 2716, 2722,
95 L.Ed.2d (1987); Woodson v. North Carolina, 428 U.S. 280, 305, 98 S.Ct. 2954, 1965, 57 L.Ed.2d 973 (1978);
Wiggins v. Smith, 2003 539 U.S. 510, 123 S. Ct. 2527, 156 L.Ed. 471; Williams v. Taylor, 120 S.Ct. 1495 (2002);
Atkins v. Virginia, 536 U.S. 304, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002); Penry v. Lynaugh, 492 U.S. 302, 109
S.Ct. 2934 (1989); Caldwell v. Mississippi 472 U.S. 320, 330, 105 S.Ct. 2633, 2640, 86 L.Ed.2d 231 (1985);
Skipper v. South Carolina, 476 U.S. 1, 106 S.Ct. 1669, 90 L.Ed.2d 1 (1986); California v. Brown, 479 U.S. 538,
541, 107 S.Ct. 837, 839-840, 93 L.Ed.2d 934 (1987); Roberts v. Louisiana, 428 U.S. 325, 333-336, 96 S.Ct. 3001,
3006-3007, 49 L.Ed.2d 974 (1976).
3
See Lockett, 438 U.S. at 587.
4
Id at 588.
5
See Chris Mallett, Socio-Historical Analysis of Juvenile Offenders on Death Row, 39 CRIM. L. BULL 445 (2003).
1
Christopher A. Mallett, Ph.D., J.D., LISW
Ineffectiveness of Death Row Juvenile Offenders’ Counsel
Criminal Law Bulletin Vol. 41(3) 2005
heard only that the offender was a juvenile.6 A majority of the current death row juvenile
offenders were not given this legal consideration before being sentenced to death. 7 It is
counsels’ legal duty to investigate and present this mitigating evidence to the jury prior to death
sentencing. The current death penalty system does not protect these juvenile offenders’ legal
rights. The death penalty should be abolished for sixteen- and seventeen-year-old offenders.
First, this paper reviews the background of the juvenile death penalty. Second, it
summarizes current juvenile offenders’ mitigating trial information. Third, it reviews United
States Supreme Court decisions (1932-2003) regarding mitigating evidence and ineffectiveness
of counsel. Fourth, Fifth Federal Circuit Court of Appeals decisions during the period 1976 to
2003 on mitigating evidence are reviewed and analyzed in light of the United States Supreme
Court rulings and the research findings that juvenile offenders’ mitigating evidence was not
presented at sentencing.8
B. Background
The death penalty has been used to execute juveniles for over 300 years for varying
offenses. Today, the offense must be first-degree (or aggravated) murder before the death
penalty can be assigned.9 On average, there has been one execution of a juvenile per year since
6
7
Id at 463.
Id. This study found systemic incompetence by these juvenile offenders’ counsel.
8
See supra note 5; App. A. This appendix is a reprint and expansion of data gathered through Nov., 2002. App.
citations include: Susan Hill, United States: A World Leader in Executing Juveniles, Human Rights Watch, (March,
1995); research being performed by Mary Berkheiser, Associate Professor and Director of Thomas Mack Legal
Clinic, Williams S. Boyd School of Law, University of Nevada Las Vegas and her research assistant, Peggy King,
was very helpful with a number of the offender’s histories including home environments, mental deficiencies and
past offenses; many conversations with juvenile offenders’ trial and appellate counsel, their families and inmates
themselves; www.web.amnesty.org/ai.nsf/Index/AMR511392000; www.amnestyuse.org/abolish/act500298;
www.abanet.org/crimjust/juvjus/jones.html; www.wcl.american.edu/humright/deahtpenalty/mitchell.html;
www.abanet.org/crimjust/juvjus/patterson.html.; www.abanet.org/crimjust/kivkis/beasley.html.
9
See Victor L. Streib, Ohio Northern University, The Juvenile Death Penalty Report, Death Sentences and
Executions for Juvenile Crimes, at http://www.law.onu.edu/faculty/streib [hereinafter, Streib, Juvenile Death
2
Christopher A. Mallett, Ph.D., J.D., LISW
Ineffectiveness of Death Row Juvenile Offenders’ Counsel
Criminal Law Bulletin Vol. 41(3) 2005
the founding of the United States.10 Currently, five states have a minimum execution age of
seventeen,11 and seventeen states have a minimum age of sixteen.12 As of November 2002, there
were eighty death row inmates awaiting execution who committed their offending crimes at the
age of sixteen or seventeen.13
The United States Supreme Court has found the execution of juvenile offenders to be
constitutional,14 but does not allow the execution of any offender younger than sixteen.15 The
Court requires that state law permit individualized consideration of mitigating factors under the
Eighth and Fourteenth Amendments.16 Sentencing juries must consider these mitigating factors
when presented at trial.17
Twenty-one juvenile offenders have been executed since 1976.18 Currently, there are
eighty juvenile offenders on death row residing in the prisons of fourteen states.19 These states
include: Texas (thirty offenders), Alabama (thirteen), Mississippi (six), Arizona (five), Louisiana
(five), Florida (four), Pennsylvania (four), North Carolina (three), South Carolina (three),
Georgia (two), Missouri (two), Kentucky (one), Nevada (one), and Oklahoma (one).20
C. Mitigating Evidence
Penalty Today]; Mirah A. Horowitz, Kids Who Kill: A Critique of How the American Legal System Deals with
Juveniles who Commit Homicide, Law and Contemp. Probs.135 (2000); Susan D. Strater, The Juvenile Death
Penalty: In the Best Interests of the Child? 26 LOYOLA UNIVERSITY of CHI. L. REV. 150, 151 (Winter, 1995).
10
See Streib, supra note 8 (Streib is one of the leading experts in this research area).
11
See Streib, supra note 8. These states are Florida, Georgia, New Hampshire, North Carolina and Texas.
12
See Streib, supra note 8. These states are Alabama, Arizona, Arkansas, Delaware, Idaho, Kentucky, Louisiana,
Mississippi, Missouri, Nevada, Okalahoma, Pennsylvania, South Carolina, South Dakota, Utah, Virginia and
Wyoming.
13
See Victor Streib, Moratorium on the Death Penalty for Juveniles, 61 LAW & CONTEMP. PROBS. 55, 69
(1998); Death Penalty Organization Reports, at http://www.deathpenaltyinfo.org.
14
Stanford v. Kentucky, 492 U.S. 361 (1989).
15
Thompson v. Oklahoma, 487 U.S. 815 (1989) (the Court held this to be an Eighth Amendment violation).
16
See Lockett, 438 U.S. at 590.
17
See Eddings, 455 U.S. at 105.
18
Amnesty International Juvenile Death Penalty Reports, at http://www.amnestyusa.org/abolish/juve.
19
See Streib, supra note 9, at App. B.
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Christopher A. Mallett, Ph.D., J.D., LISW
Ineffectiveness of Death Row Juvenile Offenders’ Counsel
Criminal Law Bulletin Vol. 41(3) 2005
Earlier research found significant evidence of mitigating socio-historical background
information for fifty-three of these eighty juvenile offenders.21 These traumatic life-determinant
factors included the following: family dysfunction,22 mental health disorders,23 abuse/neglect,24
MRDD/school failure,25 drug/alcohol addictions,26 poverty,27 child welfare involvement,28
juvenile justice involvement,29 and organic brain damage.30
20
Id.
See Mallett supra note 5.
22
Family dysfunction is defined as evidence of severe family turmoil at times marked by homelessness, constant
family discord/conflict (harmful divorces, separations, etc); significant number of adults living in family household;
overcrowding situations; and involvement in the child welfare system without state custody. This category may also
include significant signs of emotional abuse or neglect.
23
Evidenced by a psychiatric diagnosis, or severe symptomology, based on the Diagnostic and Statistical Manual of
Mental Disorders, See American Psychiatric Ass’n., Diagnostic and Statistical Manual of Mental Disorders IV (APA
Press 1994). An adult abused as a child may also manifest mental disorders including post-traumatic stress and
dissociation; see Phyllis L. Crocker, Childhood Abuse and Adult Murder: Implications for the Death Penalty, 77
N.C. L. REV. 1143 (1999).
24
Abuse/neglect is defined as corroborated evidence in written, published and/or publicly available sources as to
sustained neglect, physical abuse or sexual abuse during these youth’s life histories. Physical abuse and neglect are
long-term conditions occurring over a number of years. Emotional abuse and neglect are significantly more difficult
to identify, but are noted also in the “family dysfunction” category.
25
School failure is defined in two distinct and/or interrelated categories. One, the youth was a minimum of three
years behind chronological grade level or dropped out of school. Two, the youth was identified as mentally
retarded/developmentally delayed via criterion used by the local school system or MR/DD Association (often times
the same). See Atkins v. Virginia, 122 S.Ct. 2242, 153 L. Ed. 2d 335 (2002) (utilizing the standard WAIS-III
definition IQ of 70 or less to be considered mentally retarded).
26
Evidence of drug and/or alcohol addiction was present for the youth. Whether sporadic or chronic, impairment in
daily functioning is found. See APA, supra note 23. Long-term substance abuse problems have correlations to
childhood abuse, see Crocker, supra note 23 at 1163.
27
Evidenced by a judicial determination that the youth and family is indigent, or other findings that the family lived
below federal poverty thresholds, impacting their daily functioning, see http://aspe.hhs.gov/poverty/01poverty.htm
for current U.S. Census poverty guidelines.
28
Defined as evidence that the youth had spent time in child welfare state custody. Different states have
differing categorical criterion in determining whether custody is continued with the family or transferred to
the state. More recent federal legislation (the 1997 Adoption Assistance Act) has continued the trend of decreasing
custodial transfers nationwide. However, during the time of most of these offender’s childhood and adolescence,
custody and state intervention was more common. Categories of custody can include temporary (not officially
transferred), emergency and permanent custodial arrangements.
29
This is defined as evidence that the youth was involved with the juvenile justice system. This includes prior
misdemeanor or felony adjudications and juvenile justice institutional placement. Does not include juveniles
transferred to the adult correctional system.
30
Defined as evidence that organic brain damage was diagnosed or significantly determined to have occurred
according to expert opinion. Often times this was identified from early trauma due to abuse, neglect, or accidents.
Significant dysfunction in numerous environments was also identified. Neurophysiological makeup of the brain
may be altered as a result of physical abuse and trauma, see Crocker, supra note 23 at 1164.
21
4
Christopher A. Mallett, Ph.D., J.D., LISW
Ineffectiveness of Death Row Juvenile Offenders’ Counsel
Criminal Law Bulletin Vol. 41(3) 2005
Each juvenile offender on death row experienced on average four or five separate
traumatic life-determinant factors during his/her childhood or adolescence.31 Most children and
adolescents do not experience even one of these defined areas of trauma. Eight of these youths
experienced seven, eight, even all nine areas of childhood/adolescent difficulties.32 Eight
additional youth experienced six incapacitating areas of childhood/adolescent impairment.33
Only fourteen of these youth were impaired with as few as one or two categorical difficulties. 34
The reported histories of these juvenile offenders often were wrenchingly difficult.35 Trial juries
heard these childhood and adolescent narratives less than fifty percent of the time, and, when
presented, it was only in a cursory manner.36 Five of these mitigating background reports to the
trial jury noted only that the individual was a juvenile.37
D.
United States Supreme Court Decisions
1. Mitigating Evidence
The legal right to counsel has over two hundred years of United States and state
Constitutional support. As early as 1758, Blackstone denounced the inhumane treatment of
prisoners by English Law, claiming that assistance by counsel cannot be denied.38 Before and
31
The exact mean equaled 4.38; see App. A.
This included Steven Alvarado, James Bonifay, Dale Craig, Justin Dickens, Eddie Johnson, Kenneth Laird,
Michael Lopez and Shaber Wimberly.
33
This included Mauro Barraza, John Dewberry, Ron Foster, Derek Guillen, Levi Jackson, Kevin Stanford, and
Bruce Lee Williams.
34
This included Mark Arthur, Johnnie Bernal, Taurus Carroll, Mark Anthony Duke, Trace Duncan, Gary Davis
Hart, Patrick Horn, Antione Ligons, Kenneth Loggins, Ryan Matthews, Nathan Slaton, Christopher Solomon, and
Raul Villareal.
35
See App. A.
36
These included Mauro Barraza, Taurus Carroll, Adam Comeaux, Robert Conyers, John Dewberry, Trace Duncan,
Ron Foster, Exzavious Gibson, Derek Guillen, Scott Hain, Gary Dais Hart, William Holly, Herman Hughes, Levi
Jackson, Eddie Johnson, Anzel Jones, Kenneth Laird, Cleo LeCroy, Kenneth Loggins Michael Lopez, Jose
Monterrubio, Ted Powers, Antonio Richardson, Christopher Simmons, Raul Villareal, Geno Wilson, and Shaber
Wimberly.
37
This included Mauro Barraza, Taurus Carroll, Adam Comeaux, Trace Duncan and Ted Powers.
38
See 4 Blackstone, 355.
32
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Christopher A. Mallett, Ph.D., J.D., LISW
Ineffectiveness of Death Row Juvenile Offenders’ Counsel
Criminal Law Bulletin Vol. 41(3) 2005
after the adoption of the Federal Constitution, the constitutions of Maryland, Connecticut,
Massachusetts, New Hampshire, New York, Delaware, Pennsylvania, Georgia, and South
Carolina required that learned counsel be assigned in capital cases.39 The Sixth Amendment to
the Constitution provides that in all criminal prosecutions the accused shall have the right to
assistance of counsel for his/her defense.40
The United States Supreme Court held that failure of a trial court to make an effective
appointment of counsel in a capital case was a denial of due process within the meaning of the
Fourteenth Amendment.41 The Court further found that when the defendant is unable to secure
counsel, it is the duty of the court, whether requested or not, to assign counsel.42
The Court expanded this right to counsel in holding states to be obliged under the Sixth
Amendment to provide counsel in all criminal prosecutions.43 This right to counsel was made
obligatory on the states through the Fourteenth Amendment.44 An indigent defendant in a
criminal prosecution in a state court has the right to have counsel appointed to him or her.45
In 1972, the Court held the death penalty to be unconstitutional due to arbitrary and
capricious state sentencing standards.46 In 1976, when the Court reestablished the death penalty
as Constitutional, the opinions emphasized capital sentencing authority to consider relevant
mitigating circumstances pertaining to the offense and a range of factors about the defendant as
an individual.47 In striking down mandatory capital-sentencing statutes as unconstitutional, the
39
See Powell v. Patterson, 287 U.S. 45, 61, 53 S.Ct. 55 (1932).
Id at 65.
41
Id.at 71.
42
Id.
43
See Gideon v. Wainwright, 372 U.S. 335, 344, 83 S.Ct. 792 (1963).
44
Id.
45
Id at 345.
46
See Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972).
47
See Gregg v. Georgia, 428 U.S., 153, 96 S.Ct., 2909 (1976); Proffitt v. Florida, 428 U.S. 242, 96 S.Ct. 2960
(1976); Jurek v. Texas, 428 U.S. 262, 96 S.Ct. 2950 (1976).
40
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Christopher A. Mallett, Ph.D., J.D., LISW
Ineffectiveness of Death Row Juvenile Offenders’ Counsel
Criminal Law Bulletin Vol. 41(3) 2005
fatal flaw was the failure to permit the presentation of mitigating circumstances.48 The Court
held “the Eighth Amendment requires consideration of the character and record of the individual
. . . as a constitutionally indispensable part of the process of inflicting the penalty of death.”49
Beginning with Lockett v. Ohio, a plurality of the Court recognized that in order to
support individualized sentencing requirements in capital cases, the sentencing authority must be
permitted to consider any aspect of a defendant’s character or record and any of the
circumstances of the offense.50 In Eddings v. Oklahoma, a majority of the Court accepted the
Lockett plurality’s approach and furthered that Lockett requires the “sentencer to listen.”51
Specifically in Eddings, troubled childhood history must be considered as mitigating.52 The
Court additionally held that jury instructions may not limit jury consideration of these mitigating
circumstances.53
The Court continued to reinforce the Constitutional right of mitigating evidence
consideration that might serve as a basis for a sentence less than death.54 Evidence of the
defendant’s background and character is relevant because of the belief, long held by society, that
defendants who commit criminal acts that are attributable to a disadvantaged background, or to
emotional and mental problems, may be less culpable than defendants who have no such
excuse.55 “The sentence imposed at the death penalty stage should reflect a reasoned moral
48
See Woodson, 428 U.S. 286 at 303-305 (1976); Roberts v. Louisiana, 428 U.S. 325, 334-335, 96 S.Ct. 3001, 3006
(1976).
49
See Woodson, 428 U.S. at 303 (The Court continued that without this consideration, the possibility of
compassionate or mitigating factors could not be reviewed in light of the frailties of humankind. Fixed death
penalty sentencing guidelines treat human beings as members of a faceless, undifferentiated mass to be subjected to
the blind infliction of the penalty of death).
50
See Lockett, 438 U.S. at 604.
51
See Eddings, 455 U.S. at 115.
52
Id. at 117.
53
See Hitchcock v. Dugger, 481 U.S. 393, 107 S.Ct. 1821, 95 L.Ed.2d 347 (1987).
54
See Skipper, 476 U.S. at 4-5.
55
See California, 479 U.S. at 545.
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Christopher A. Mallett, Ph.D., J.D., LISW
Ineffectiveness of Death Row Juvenile Offenders’ Counsel
Criminal Law Bulletin Vol. 41(3) 2005
response to the defendant’s background, character, and crime,”56 and must consider both the
tangibles and intangibles of the defendant.57
State statutes that have categorically limited mitigating evidence have been held
unconstitutional.58 In some cases, evidence of drug abuse, brain damage, and poverty were held
as mitigating evidence that must be reviewed by the sentencing authority.59 The Court found that
childhood mitigating evidence must be presented to the sentencing authority. 60 Evidence that
should have been presented in Williams v. Taylor but was not presented included the following:
parents being imprisoned for criminal neglect of the child; severe and repeated beatings
experienced by the child; return to the abusive parents upon their prison release; borderline
mental retardation of the child; and repeated head injuries incurred by the child.61
In reviewing mental retardation as a mitigating factor, the Court originally held in
violation of the Eighth and Fourteenth Amendments the absence of instructions informing the
jury that it could consider and give effect to the defendant’s mental retardation and abuse
background.62 This deprived the jury of a vehicle for expressing its “reasoned moral response”
to mitigating evidence in rendering a sentencing decision.63 It was in 2002 the Court modified
this decision and held mental retardation to be a complete bar to the death sentence.64
2. Ineffectiveness of Counsel
56
See Woodson, 428 U.S. at 304.
See Caldwell, 472 U.S. at 330.
58
See Hitchcock, 481 U.S. at 396. The Florida statute allowed as mitigating evidence only the following: significant
history of prior criminal activity; mental or emotional disturbance; victim consent or participation; accomplice
participation; acting under duress; capacity to understand actions under the law; and the age of the defendant.
59
Id at 397.
60
See Williams v. Taylor, 120 S.Ct. at 1497.
61
Id at 1498.
62
Id.
63
See Penry v. Lynaugh, 492 U.S. at 328.
57
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Christopher A. Mallett, Ph.D., J.D., LISW
Ineffectiveness of Death Row Juvenile Offenders’ Counsel
Criminal Law Bulletin Vol. 41(3) 2005
Death sentenced juvenile offenders’ Constitutional rights are to have their childhood
stories told to the jury. What if counsel fails in this duty? The Court’s Strickland v. Washington
holding defines ineffectiveness of counsel.65 First, the defendant must show that counsel made
errors so serious that counsel was not functioning as guaranteed the defendant by the Sixth
Amendment. Second, the defendant must show the deficient performance prejudiced the
defense. This requires showing that counsel’s errors were so serious as to deprive the defendant
of a fair trial.66 To establish ineffectiveness, a defendant must show that counsel’s representation
fell below an objective standard of reasonableness defined in terms of prevailing professional
norms.67 Strickland’s counsel claimed their limited investigation into the petitioner’s
background reflected a tactical judgment not to present mitigating evidence.68 To establish
prejudice the defendant must show that there is a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would be different.69 A reasonable probability
is a probability sufficient to undermine confidence in the outcome.70 The Court determined
Strickland’s counsel to meet this standard of ineffectiveness.71
Burger v. Kemp
In Burger v. Kemp’s dissent, three years after Strickland was decided, Justices Marshall,
Brennan, and Blackmun found trial counsel made no inquiries into the death row offender’s
academic, medical, or psychological history and presented no mitigating evidence.72 Traumatic
64
See Atkins v. Virginia, 536 U.S. at 309 (The Court held an intelligence quotient of 70 or below was considered
mentally retarded. This figure comports with the American Psychiatric Association’s Diagnostic and Statistical
Manual of Mental Disorders (1994) determinative mental retardation diagnostic figure).
65
See Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).
66
Id at 674.
67
Id.
68
See Wiggins, 539 U.S. 510 at 538.
69
See Strickland at 674.
70
Id.
71
Id.
72
See Burger v. Kemp, 483 U.S. 776, 107 S.Ct. 3114, 97 L.Ed.2d 638 (1987).
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Ineffectiveness of Death Row Juvenile Offenders’ Counsel
Criminal Law Bulletin Vol. 41(3) 2005
factors not presented at mitigation for the defendant included a history of poverty and living in a
crime-ridden neighborhood, dysfunctional family, involvement in the juvenile justice system,
and depression.73 This dissent would have held counsel ineffective under Strickland.74
Defendant Burger’s counsel failed to investigate this mitigating evidence and failed to
present any evidence at sentencing despite the petitioner being an adolescent with psychological
problems and apparent diminished mental capabilities.75 Counsel further failed to request a
psychological exam, citing bias in the jurisdiction’s procedure.76 The dissent found this decision
contrary to professional norms of competent assistance for the defendant had clear indications of
psychological problems and diminished mental capabilities.77
Defendant Burger’s trial counsel did not contact any family members, relied on the
petitioner to suggest possible witnesses or mitigating evidence, and spoke to petitioner half a
dozen times for no more than one hour per session.78 Counsel never learned of the petitioner’s
12-year-old mental functioning level (IQ equal to 81), possible brain damage caused by physical
abuse, and involvement with drugs and alcohol by the age of eleven.79 Defense counsel knew
something of these facts through his interviews, reviews of psychological reports supplied by the
petitioner’s mother, and another attorney who knew the petitioner and had befriended him earlier
in life.80 Counsel made the decision that presenting any of this information would not have been
to Burger’s benefit.81 Justices Brennan, Blackmun, and Marshall disagree that this strategic
73
Id at 780
Id.
75
Id at 811.
76
Id at 812.
77
Id at 813.
78
Id.
79
Id.
80
Id at 818.
81
Id.
74
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Criminal Law Bulletin Vol. 41(3) 2005
choice made after less than adequate investigation is not supported by informed professional
judgment.82
The dissent’s second part is joined by Justice Powell and claims that counsel’s reason for
not presenting the sentencing jury with evidence of Burger’s mental and emotional immaturity
was ambiguous.83 With juvenile offenders, this evidence is extraordinarily germane to the
individualized inquiry constitutionally required of the sentencing jury.84 Defendants who
commit criminal acts that are attributable to these types of factors, disadvantaged backgrounds
and mental or emotional problems, may be less culpable than defendants who have no such
excuse.85 The Constitution requires the capital-sentencing system to recognize the difference
between childrens’ and adults’ criminal responsibility.86 The dissent furthers that this
investigation should review age, actual maturity, family environment, education, emotional and
mental stability, and prior record in culpability determination.87
Antiterrorism and Effective Death Penalty Act
In 1996, Congress dramatically changed the federal courts’ habeas corpus standard of
review.88 Prior to this Act, federal courts engaged in de novo review of any legal claim or mixed
82
Id at 814.
Id at 820.
84
Id at 821, quoting Eddings v. Oklahoma, 455 U.S. 104, 115, where the defendant experienced violent beatings by
his father and showed severe emotional disturbance.
85
Id at 821, quoting California v. Brown, 479 U.S. 538, 545.
86
Id at 822.
87
Id.
88
See 28 U.S.C. 2254(d) Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA). AEDPA §2254(d)
provides “an application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a
State court shall not be granted with respect to any claim that was adjudicated on the merits in State court
proceedings unless the adjudication of the claim 1) resulted in a decision that was contrary to, or involved an
unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United
States; or 2) resulted in a decision based on an unreasonable determination of the facts in light of the evidence
presented in the State court proceeding.
83
11
Christopher A. Mallett, Ph.D., J.D., LISW
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Criminal Law Bulletin Vol. 41(3) 2005
question of law raised in a habeas petition.89 This change in standard has impacted a defendant’s
ability to obtain relief from a sentence believed to violate the Constitution.90
The Supreme Court reviewed the AEDPA’s language in Williams v. Taylor, where death
row inmate Williams claimed ineffectiveness of counsel during the sentencing phase of his
capital murder trial.91 The Court’s interpretation eliminated independent de novo review of
habeas claims, allowing writ issuance only in certain limited circumstances.92 The standard for
review was raised for those state court decision mistakes from an objective standard of
reasonableness to mistakes that were objectively unreasonable.93 Application occurred in
Wiggins v. Smith as the Supreme Court reviewed the Maryland State Court of Appeal’s
affirmation of the petitioner’s death sentence, and further reviewed the petitioner’s
ineffectiveness of counsel claim.94
Wiggins v. Smith
The question before the Supreme Court was whether a writ of habeas corpus should issue
allowing Mr. Wiggins a new capital sentencing proceeding.95 The Court was restricted by the
AEDPA in its analysis to the law as to what was “clearly established” by precedent at the time of
the state court’s decision.96 The Court found the Maryland Court of Appeals’ assumption that
the pre-sentence investigation performed by Wiggin’s trial counsel was adequate reflected an
89
See Lyn Entzeroth, Symposium: 2002-2003 Supreme Court Review: Federal Habeas Review of Death Sentences,
Where are we Now: A Review of Wiggins v. Smith and Miller-el V. Cockrell, 39 Tulsa L. Rev. 49; for critique of the
AEDPA passage, see James S. Liebman, An “Effective Death Penalty?” AEDPA and Error Detection in Capital
Cases, 67 Brook. L. Rev. 411 (2001); and Bryan A Stevenson, The Politics of Fear and Death: Successive Problems
in Capital Habeas Corpus Cases, 77 N.Y.U. L. Rev. 699, 706-31 (2002).
90
See Entzeroth at 54.
91
Id at 57.
92
Id at 60.
93
Id.
94
See Wiggins, 539 U.S. 510.
95
See Entzeroth supra note 89 at 60.
96
See Wiggins at 520.
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Christopher A. Mallett, Ph.D., J.D., LISW
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unreasonable application of Strickland.97 The Maryland Court of Appeals’ conclusion that the
scope of counsel’s investigation into petitioner’s background met the legal standards set forth in
Strickland represented an objectively unreasonable application of precedent.98 The Court
determined they must decide de novo whether counsel reached beyond the purported limited
investigation into petitioner’s background.99
Court records demonstrated that counsel’s investigation drew from three sources.100
First, counsel arranged for Dr. William Stejskal, psychologist, to test Wiggins, finding features
of a personality disorder and an IQ of 79.101 Second, counsel had available a pre-sentence
investigation with a one-page personal history account noting “misery as a youth” and observing
foster care placement for most of petitioner’s life.102 Third, counsel reviewed Baltimore City
Department of Social Service records documenting petitioner’s various foster care system
placements.103 Standard Maryland state practice at the time was for counsel to have prepared a
social history for all capital case defendants, with the state providing funds for the investigation.
Counsel failed to perform this.104 The Court also cited American Bar Association mitigating
evidence guidelines purporting to discovery of “all reasonably available” mitigating evidence.105
Such mitigating evidence is critical in capital sentencing.106 The Court found counsel’s efforts
failed to meet this responsibility bar.107
97
Id at 528.
Id.
99
Id at 531.
100
Id at 523.
101
Id.
102
Id.
103
Id at 524.
104
Id.
105
Id. The ABA further specified this investigation should at a minimum investigate petitioner’s medical history,
educational history, family and social history, prior adult and juvenile correctional experience, and religious and
cultural influences. See ABA Standards for Criminal Justice 4-4.1 commentary, p. 4-55.
106
See Randall Coyne & Lyn Entzeroth, Report Regarding Implementation of the American Bar Association’s
Recommendations and Resolutions Concerning the Death Penalty and Calling for a Moratorium on Executions, 4
98
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The Court distinguished Wiggins from earlier precedent, finding counsel was
unreasonable in not pursuing additional mitigating evidence before making an informed choice
of possible defenses.108 Counsel was aware that petitioner’s mother was a chronic alcoholic,
petitioner was shuttled between numerous foster homes over a lengthy period of time, had
significant school absences, and displayed emotional difficulties.109 The Court found counsel
inattentive with a half-hearted effort of petitioner’s mitigation case and not a strategic trial
decision.110
The Court interpreted their earlier Strickland decision that counsel’s cursory investigation
automatically justifies a tactical decision with respect to sentencing strategy.111 Rather, the
reviewing court must now consider the reasonableness of the investigation.112 The Court found
the Maryland Court of Appeals’ application of Strickland’s governing legal principles
objectively unreasonable.113 The Court determined that AEDPA §2254(d) posed no bar to
Geo. J. on Fighting Pov. 3 (1996); and Donald P. Lay, The Writ of Habeas Corpus: A Complex Procedure for a
Simple Process, 77 Minn. L.Rev. 1015 (1993).
107
Id.
108
Id at 525. See Strickland 466 U.S. 668 (concluding that counsel could reasonably surmise that character and
background evidence would be of little help to the petitioner); Burger, 483 U.S. 776 (concluding counsel’s limited
investigation was reasonable in interviewing all witnesses brought to counsel’s attention, finding significant harmful
information); Darden v. Wainwright, 477 U.S. 168, 106 S.Ct. 2464, 91 L.Ed.2d 144 (1986) (concluding counsel’s
extensive preparation identified evidence of petitioner’s violent crimes and imprisonment and decision to present a
mitigation case would have been harmful); Nix v. Whiteside, 475 U.S. 157, 165 (warning that constitutionalizing the
definition of effective assistance of counsel may intrude on the states’ authority to define standards of attorney
professional conduct); and Bell v. Cone, 535 U.S. 685 (2002) (finding the defendant failed to establish a Sixth
Amendment counsel violation).
109
Id. Counsel had access to the Department of Social Services records that revealed this information. The Federal
District Court emphasized that any reasonable attorney would have pursued this additional information in light of
the lack of mitigating factors in Wiggin’s background.
110
Id at 526.
111
Id.
112
Id.
113
Id at 527, see supra note 88 for AEDPA language. See Entzeroth, supra note 89 (Where it is pointed out
interestingly that in Wiggins, unlike Williams, the state court applied the correct precedent, Strickland, leaving the
Court’s focus on whether the state court’s decision was objectively unreasonable. The question would appear to
require the Court to delineate when an error is reasonable or unreasonable. Prior to Wiggins, the Court had provided
limited guidance. Although the Court advised that an unreasonable error had to be objectively unreasonable as
opposed to subjectively unreasonable, this standard is difficult to discern).
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granting habeas relief to petitioner.114 Hence, the Court concluded that counsel’s investigation of
petitioner’s background was limited to the pre-sentence investigation and the Department of
Social Service records.115 Strickland was furthered by concluding “strategic choices made after
less than complete investigation are reasonable” only to the extent that “reasonable professional
judgments support the limitations on investigation.”116
To constitute a Sixth Amendment violation, petitioner’s claim of ineffective counsel must
show failures that prejudiced the defendant.117 The Court reweighed the mitigating evidence to
the amount in aggravation and found the petitioner had the kind of troubled history declared
relevant to assessing a defendant’s moral culpability.118 Wiggins experienced severe privation
and abuse, an alcoholic absentee mother, sexual molestation, homelessness, and diminished
mental capacities.119 Given the strength of the available evidence, a reasonable attorney may
have chosen to prioritize the mitigation case over the direct responsibility challenge.120 The
Court concluded that had a jury been confronted with this considerable mitigating evidence,
there is a reasonable probability that at least one juror would have struck a different balance.121
114
Id at 530. See Entzeroth, supra note 89 at 65 (quoting Woodward, 537 U.S. at 24-25, under AEDPA § 2254(d)
“unreasonable application” clause, a federal habeas court may not issue the writ simply because that court concludes
in its independent judgment that the state court decision applied Strickland incorrectly. Rather, it is the habeas
applicant’s burden to show that the state court applied Strickland to the facts of his case in an objectively
unreasonable manner. An unreasonable application of federal law is different from an incorrect application of
federal law).
115
Id at 533. This was a necessary finding in light of the AEDPA’s deference to state court decisions and substantial
burden of proving by clear and convincing evidence the state court made an error of fact in its decision of the case,
thus allowing a de novo review. This “clear factual error” was finding that the social service records contained
evidence of sexual abuse, when, as all parties concede, the records did not.
116
Id.
117
Id. See supra note 65 (the Strickland analysis requires counsel’s performance to be inadequate, as concluded by
the Court, and that this inadequate performance prejudiced the defendant).
118
Id. See Penry, 492 U.S. 302 at 319 (finding that evidence about defendant’s background and character is relevant
for disadvantaged background defendants who may be less culpable than defendants who have no such excuse); and
Eddings, 455 U.S. 104 at 112 (noting that consideration of defendant’s life history is part of the death penalty
process).
119
Id at 535. The Court found the mitigating evidence counsel failed to discover and present to the jury was
powerful.
120
Id.
121
Id at 537.
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Accordingly, under both of Strickland’s prongs, trial counsel’s performance was constitutionally
deficient.122
The Wiggins decision makes clearer that habeas corpus, even after the AEDPA, remains a
viable, independent, and exacting method of state court convictions review.123 The Court also
finds attorney competence in death penalty cases, with a particular focus on mitigation sentence
evidence, is important and is to be scrutinized closely.124 Wiggins clearly will assist future
juvenile offenders in having their socio-historical background experiences presented to the
sentencing jury. It is doubtful, following the AEPDA and habeas review standards, that Wiggins
can assist current juvenile offenders on death row.125 How did our current death sentenced
juvenile offenders arrive at this point?
E. Fifth Circuit Court of Appeals
The Fifth Circuit Court of Appeals jurisdiction includes Texas, Louisiana, and
Mississippi. An astounding near majority of the studied current juvenile offenders were
sentenced to death within this Circuit.126 Nearly half of these death-sentenced juveniles had no
122
Id.
See Entzeroth supra note 89 at 67.
124
Id. at 68. For only the second time here in Wiggins, the Supreme Court granted relief to a death row inmate
claiming ineffectiveness of counsel. Prior to the Williams decision, the Court never found counsel ineffective
despite some extreme examples (sleeping during trial; intoxication). The Wiggins decision has limits. This decision
does not require counsel to investigate every conceivable area of mitigating evidence or to present mitigating
evidence in all capital cases. “We base our conclusion on the much more limited principle that ‘strategic choices
made after less than complete investigation are reasonable’ only to the extent that ‘reasonable professional
judgments support the limitations on investigation.’ A decision not to investigate thus ‘must be directly assessed for
reasonableness in all the circumstances.’” See Wiggins at 533 (quoting Strickland, 466 U.S. at 689, 690-91). These
limitations to the Wiggins decision prompt some advocates to push individual states to adopt a more demanding
standard to replace the current test for effective assistance of counsel in capital sentencing contexts. See Virginia E.
Sloan ed., The Constitution Project, Mandatory Justice, 18 Reforms to the Death Penalty 6 (2001); and Donald J.
Hall, Effectiveness of Counsel in Death Penalty Cases, 42 Brandeis L.J. 225 (2003-04).
125
See App. A.
126
Id. Twenty-six of the fifty-three juvenile offenders on death row.
123
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mitigating evidence presented at trial.127 When mitigating evidence was presented, two of the
offenders’ juries heard only that the offender was a juvenile.128 This ineffectiveness, unfairness,
and incompetence within the nation’s “Death Belt” has been well documented.129 Capital trials
are often completed in one to two days; penalty phases of capital trials commence immediately
after the guilt phase and last several hours at best; little effort is expended to present mitigating
evidence at the penalty phase; and the Strickland test for ineffective assistance of counsel is
applied in a meaningless fashion.130 Texas has arguably embraced the execution of juvenile
offenders since Stanford.131
But of equal significance are the Fifth Circuit Court of Appeals’ decisions that have
arguably not adhered to the United States Supreme Court rulings or followed precedent
significantly later in time. It is argued that the Fifth Circuit Court of Appeals has contributed to
127
Id. Twelve of the twenty-six juvenile offenders on death row did not have evidence presented at trial. This
number could be even higher for it could not be determined for an additional twelve juvenile offenders what
evidence, if any, was presented.
128
Id. This included Mauro Barraza and Adam Comeaux.
129
See Wiseman infra note 166; Marcia Coyle, et al., Trial and Error in the Nation’s Death Belt: Fatal Defense, 12
Nat’l., L.J. 29, (1990); David Margolick, Texas Death Row is Growing, But Fewer Lawyers Will Help, N.Y. Times,
Dec. 31, 1993, b, at 1, 13; Daniel T. Kobil, The Quality of Mercy Strained: Wresting the Pardoning Power from the
King, 69 Tex. L. Rev. 569, 605 n. 23 and accompanying text (1991); Paul M. Barrett, On the Defense: Lawyer’s
Fast Work on Death Cases Raises Doubts About System, Wall Street J., Sept. 7, 1994, A, at 1; Michael L. Radelet, et
al., In Spite of Innocence (1992); Jack Hayes, et al., Stolen Lives Lost, (1994); Gera-Lind Kolarik, DNA, Changed
Testimony Gain Acquittal, ABA J., Jan. 1996, at 34-5; Victor L. Streib, Adolescence, Mental Retardation, and the
Death Penalty: The Siren Call of Atkins v. Virginia, 33 N.M.L. Rev. 183; Brent E. Newton, A Case Study in
Systemic Unfairness: The Texas Death Penalty, 1973-1994, 1 Tex. F. on C.L. & C.R. 1 (1994); Kristina G. Van
Arsdel, The Fifth Circuit Wakes up, but the Supreme Court Refuses to put the Sleeping Attorney Standard to Rest, 39
Hous. L. Rev. 835 (2002); Rebecca Copeland, Getting it Right from the Beginning: A Critical Examination of
Current Criminal Defense in Texas and Proposal for a Statewide Public Defender System, 32 St. Mary’s L.J. 493
(2001); Russell L. Weaver, The Perils of being Poor: Indigent Defense and Effective Counsel, 42 Brandeis L.J. 435
(2003-04); and Stephen B. Bright, Restructuring Federal Courts: Habeas: Elected Judges and the Death Penalty in
Texas: Why Full Habeas Corpus Review by Independent Federal Judges is Indispensable to Protecting
Constitutional Rights, 78 Tex. L. Rev. 1805 (2000).
130
See Wiseman infra note 166 (the author studied capital cases from Alabama, Georgia, Florida, Louisiana,
Mississippi, and Texas, thousands of pages of transcript from nearly 100 trials from these states, interviewed
prosecutors, defense attorneys, judges, and experts in law, and concluded that “fairness is more like the random flip
of a coin than a delicate balance of the scales of justice”).
131
See Streib supra note 129 at 193 (from 1990 to 2002, Texas executed 251 persons, eleven (four percent) of whom
were juvenile offenders).
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the documented ineffectiveness and incompetence of capital offense counsel within its own
jurisdiction through this delayed compliance with Supreme Court precedent.132
Concurrence
The Fifth Circuit Court followed the United States Supreme Court rulings in finding
either at trial or mitigation phases, a reasonably substantial, independent investigation must be
pursued by counsel to identify potential defenses.133 The Fifth Circuit held uninformed
decisions, lacking this adequate investigation, were not to be deferred to as determinant.134 Case
law rejects an attorney’s strategic decision based upon the failure to adequately investigate and
make reasonable strategic decisions.135 Failure to present mitigating evidence should undermine
any confidence in the verdict.136 While the Fifth Circuit concurred in these decisions, the system
failed juvenile offenders.137 Systemic failure has been causally identified symptomatic of
poverty, indigent defense flaws, and elected judges.138
132
See Mallett supra note 5; supra note 129.
See Baldwin v. Maggio, 704 F.2d 1325, 1332-33 (5th Cir.1983); Cantu v. Collins, 967 F.2d 1006 (5 th Cir.1992);
Jones v. Thigpen, 899 F.2d 1101 (5th Cir.1986); Romero v. Lynaugh, 884 F.2d 871 (5 th Cir.1989); Mattheson v.
King, 950 F.2d 1054, (5th Cir.1985); Loyd v. Whitley, 977 F.2d 149 (5th Cir.1992); Nealy v. Cabana, 764 F.2d 1173
(5th Cir.1985); Martin v. McCotter, 796 F.2d 813, 819 (5 th Cir.1986) (The Court found ineffective assistance with
emphasis on fact that failure to investigate was not a strategic choice).
134
See United States v. Drones, 218 F.3d 496, 500 (5 th Cir.2000).
135
See Mapes v. Coyle, 171 F.3d 408, 426 (5th Cir.1999); Selvage v. Lynaugh, 842 F.2d 89, 95 (5 th Cir 1988) cert
denied 488 U.S. 865, 109 S.Ct. 168, 102 L.Ed.2d 138 (1988) (The Court found the extent of investigation and
counsel’s decision constituted a “reasonable strategic choice” was unclear); Jones v. Thigpen, 788 F.2d 1101 (5 th
Cir.1986) (The Court found unreasonable counsel’s strategic decision not to pursue mental background because state
rebuttal could turn evidence against the defendant).
136
See Loyd v. Whitley, 977 F.2d 149, 159-160 (5th Cir.1992); Lockett v. Anderson, 230 F.3d 695 (5 th Cir.2000);
Loyd v. Whitley, 977 F.2d 149 (5 th Cir.1992).
137
See Mallett supra note 5; supra note 129.
138
See Weaver supra note 129 (the author discusses how ineffective assistance jurisprudence has gone astray and
allowed egregious examples of attorney conduct, sleeping during trial and giving newly appointed defense counsel
25 days to prepare for a capital trial, have disproportionately affected the poor at the risk of death); see Bright (the
author states that Texas has demonstrated the Bill of Rights, particularly the right to counsel, cannot be left in the
hands of partisan elected judges, with Texas carrying out over two hundred executions in the last twenty years; see
Newton (claiming Texas to be the undisputed leader in applying the death penalty to those who should be exempt,
namely, those suffering from acute mental disabilities and those who committed the crime as juveniles); see Burdine
v. Johnson, 321 F.3d 950 (where the Fifth Circuit did find a sleeping during trial attorney to be ineffective and
prejudiced the capital defendant, but the court explicitly stated it “declines to adopt a per se rule that any dozing by
defense counsel during trial merits a presumption of prejudice.”).
133
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Strickland’s second prong requires a defendant to show prejudice resulting from deficient
counsel. Failure on either investigation or prejudice prongs will defeat the claim.139 The mere
possibility of a different outcome is not sufficient to meet this prejudice standard.140 There is
great deference given to counsel’s assistance presuming that counsel has exercised reasonable
professional judgment.141 Often, counsel’s omission presented “no advantage” to the defense
and the court refused to accord deference to counsel’s tactical decision.142 Then how has the
Fifth Circuit become the juvenile offender “death belt”?
Precedent Delayed
The Fifth Circuit has a conflicted history of denying ineffectiveness of counsel claims in
capital cases.143 As recently as 1997 in West v. Johnson, this Circuit Court found failure of
counsel to investigate childhood abuse may have been professionally deficient, yet failure to
present mitigating evidence of this type during the penalty phase is not, per se, ineffectiveness of
counsel.144 The Circuit Court continued its reasoning that defendant West was not prejudiced by
counsel also not presenting evidence of alcohol and drug abuse history and organic brain
damage, rendering the defendant with diminished capacity to control his impulses and
139
See Tucker v. Johnson, 115 F.3d 276, 280 (5 th Cir.1997)(citing Strickland, 466 U.S. at 697).
See Cockrum v. Johnson, 119 F.3d 297, 302 (5th Cir.1997); Kyles v. Whitley, 5 F.3d 806, 819 (5 th Cir.1993).
(Court held the conduct of a defense attorney to the objective standard of a reasonable attorney).
141
See Ricalday v. Procunier, 736 F.2d 203, 206 (5 th Cir.1984).
142
See Profitt v. Waldron, 831 F.2d 1245, 1249 (5 th Cir.1987).
143
See West v. Johnson, 92 F.3d 1385 (5th Cir.1996) (claiming the petitioner failed to establish that he was denied
effective assistance of counsel at sentencing); Ransom v. Johnson, 126 F.3d 716 (5th Cir.1997) (finding petitioner
did not establish prejudice required to prevail on ineffective assistance of counsel claim and that it was not
constitutional error to refuse to instruct jury that it could entertain and return guilty verdict for lesser-included
offense); King v. Puckett, 1 F.3d 280 (5th Cir.1993); Mattheson v. King, 751 F.2d 1432, 1440 (5th Cir.1985) (Court
found failure to investigate fell within the “realm of sound trial strategy”); Andrews v. Collins, 21 F.3d 612, 623 (5 th
Cir.1994) (held counsel was not ineffective for failing to raise issues that had been previously rejected and special
issues adequately allowed the jury to consider defendant’s family relationship as mitigating factor); Theriot v.
Whitley, 18 F.3d 311, 313 (5th Cir.1994) (counsel knew of “the problem of neglect within the family” but even
under these circumstances, counsel’s failure to investigate may have fallen below an objective standard of
reasonableness for professional performance); East v. Scott, 55 F.3d 996 (5 th Cir.1995) (when counsel is on notice of
potential mitigating evidence, counsel is no longer justified in relying exclusively on the defendant for information).
144
See West v. Johnson, 92 F.3d 1385 at 1390.
140
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behavior.145 In Ransom v. Johnson, this Court interpreted and arguably raised the Strickland
prejudice prong standard by denying this defendant an ineffectiveness of counsel claim because
the prejudice resulting from counsel’s errors must render sentencing “fundamentally unfair or
unreliable.”146 Here, counsel had known the defendant for over two decades and was aware of
defendant’s history of severe physical and sexual abuse at the hands of his mother and older
siblings, as well as the long history in and out of foster care.147 Counsel chose not to present any
of this information at the sentencing phase.148
The Fifth Circuit has conflicted holdings on counsel’s failure to investigate
physical/psychological problems when given limited reason to suspect useful mitigating
evidence.149 The Court interpreted and arguably raised the Strickland prejudice prong by
requiring a defendant who claimed a failure to investigate on the part of his/her counsel needed
to allege with specificity what the investigation would have revealed and how it would have
altered the outcome of the trial.150 In King v. Puckett, the defendant was denied an
ineffectiveness of counsel claim even though counsel had clear evidence of the petitioner’s
diminished mental capacity and psychiatric history, and counsel failed to follow up on a court
order to the hospital to provide these records.151 It was not for four additional years when this
Court’s standard for evidence became compliant with Strickland’s holding that evidence
145
Id at 1410.
See Ransom, 126 F.3d 716 at 723.
147
Id at 721-2.
148
Id.
149
See Andrews v. Collins, 21 F.3d at 623; Theriot v. Whitley, 18 F.3d at 313, concurring with Burger v. Kemp 483
U.S. 776, 107 S.Ct. 3114, 97 L.Ed.2d 638 (1987) and Darden v. Wainwright 477 U.S. 168, 106 S.Ct. 2464, 91
L.Ed.2d 144 (1986) (Court found counsel had no reason to believe that pursuing further investigation into
defendant’s background would be useful. Counsel’s failure to pursue those investigations may not be challenged as
unreasonable).
150
See United States v. Green, 882 F.2d 999, 1003 (5th Cir.1989).
151
See King v. Puckett, 1 F.3d 280 at 183 (5th Cir.1993).
146
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sufficient to raise a reasonable probability that, had it been presented to the jury, a life sentence
would have resulted.152
It was not until 1992 that the Fifth Circuit allowed full consideration of defendant’s age
(youth) as a mitigating circumstance,153 which was ten years after the holding in Eddings v.
Oklahoma.154 Yet this Circuit Court required mitigating evidence needed presentation at trial
sentencing and could not be offered during later appellate or habeas corpus proceedings.155 That
same year the Court contradicted this ruling and found a seventeen-year-old offender received
ineffective counsel when counsel failed to present evidence of mental retardation, emotional
disturbance, and defendant’s age.156 Again that year, the Court ruled evidence of age and a
difficult family background not presented at trial did not render ineffectiveness of counsel.157
The Fifth Circuit has presented defense counsel and defendants with significant disparity and
disparate holdings on mitigating evidence and ineffectiveness of counsel claims.
F. Conclusion
The Fifth Circuit has sentenced a near majority of current juvenile offenders on death
row.158 This near majority assignment of juveniles to death row highlights this Circuit’s
holdings’ legal deficiencies. While not condoning these juveniles’ acts, mitigating evidence
must be considered at death sentencing. The Fifth Circuit and representative counsel failed to
give this legal consideration before death sentencing.
152
See Andrews, 21 F.3d at 624; Callins v. Collins, 998 F.2d 269, 279 (5 th Cir.1993); King, 1 F.3d at 285.
See Graham v. Collins, 950 F.2d 1009 (5 th Cir.1992).
154
See Eddings, 455 U.S. at 107.
155
See DeLuna v. Lynaugh, 890 F.2d 720, 722 (5 th Cir.1989); Wilkerson, 950 F.2d at 1059.
156
See Jones, 788 F.2d at 1108 (defendant was seventeen at the time of the crime).
157
See Romero, 884 F.2d at 879 (here, the defendant was a sixteen year-old with an abusive family background).
153
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Current juvenile death row inmates can find hope in the Supreme Court’s Williams and
Wiggins decisions, but that hope should not be overstated. The Court in Wiggins did not retreat
from its erroneous and unreasonable standard for habeas relief in finding the state court made a
clear factual error.159 In Wiggins, the Court found that the state court made a clear factual error
regarding the scope of counsel’s mitigation investigation.160 In Williams, the Court found that
the state court applied the wrong Supreme Court law.161 The later application of incorrect
precedent was not found in the Fifth Circuit decisions reviewed here. It is clearly unlikely that a
reviewing court would not apply Strickland in ineffective counsel claims, leaving the juvenile
petitioner’s advocacy hopes with Wiggins.
An inmate who is convicted and sentenced to death in an unconstitutional manner still
cannot obtain habeas relief unless that inmate convinces the federal court that a state court’s
erroneous application of the law was objectively unreasonable.162 The Supreme Court has
signaled a more exacting review of attorney investigations of mitigating evidence, but has not
concurrently reviewed this more exacting review to attorney decisions based on a reasonable
investigation.163
It would be unwise advocacy efforts to hope for the Williams and more importantly the
Wiggins decisions to correct the documented trial counsel ineffectiveness in the mitigation
sentencing trial of current death row juvenile offenders.164 These Supreme Court decisions are
158
See Mallett supra note 5
See Wiggins at 535.
160
See Entzeroth supra note 89 at 73.
161
Id (reviewing the Wiggins decision).
162
Id.
163
Id. See supra notes 89 & 124.
164
See Mallett supra 5.
159
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too narrow and the standard of review too difficult to obtain. The current death penalty system
continues to not protect these already death-sentenced juvenile offender’s Constitutional rights.
Future juvenile offenders may find assistance from the Court’s Wiggins decision in
supporting Constitutionally required investigations into the defendant’s life history, but this
Constitutional support is limited.165 The only guarantee of this Constitutional protection is the
abolishment of the death penalty for sixteen- and seventeen year-old-offenders.166
165
See Kolansk supra note 129 (arguing that the Wiggins decision clearly applies the American Bar Association
recommendation for mitigation specialists to be utilized in all capital cases); and Terrence T. England, Case Note,
United States Supreme Court: Wiggins v. Smith (arguing that Wiggins makes the appointment of mitigation
specialist in capital cases mandatory).
166
See Christine M. Wiseman, Representing the Condemned: A Critique of Capital Punishment, 79 Marq. L. Rev.
731 (where the author reports her experiences representing death row inmates, including one juvenile offender, and
claims she has never conversed with a death row inmate who would trade the continued hope of a claim of
innocence for the opportunity to end it all); Victor L. Streib, Adolescence, Mental Retardation, and the Death
Penalty: The Siren Call of Atkins v. Virginia, 33 N.M.L. Rev. 183 (the author concludes that offenses committed by
juveniles under the age of eighteen do not merit the death penalty for executing such young offenders is a relic of the
past and is inconsistent with evolving standards of decency in a civilized society).
23