Friday, January 15, 2010

Supreme Court: Effective Assistance of Counsel in Capital Cases

Since the current Term of the United States Supreme Court began in October, the Court has issued thirteen opinions.

A remarkable five of those opinions have addressed claims that a criminal defendant was denied his constitutional right to the effective assistance of counsel. All five of these cases are death penalty cases, and all five address the penalty phase of a capital case.

A capital trial is bifurcated: the jury must first determine whether the defendant is guilty of a capital offense. If the jury finds the defendant is guilty, a second trial is then conducted before the same jury at which the jurors must decide whether to impose the death penalty.

In many death penalty cases the evidence of guilt is overwhelming, so the strategy of defense counsel is to focus on phase two: trying to convince the jury to spare the defendant's life. The difficulties for defense counsel at the penalty phase are self-evident: the crime is horrific, and the defendant may not cut a very sympathetic figure.

Ineffective assistance of counsel claims are very fact specific. It is, therefore, unusual for the Court to address so many of them in such a short period of time. I think this does reflect a general uneasiness that all capital defendants are not being adequately represented at the trial level.

But I think the fact that all five cases address the sentencing phase of a capital case also reflects a message from the Court: in light of the difficult hand dealt to defense counsel at the penalty phase--trying to elicit a sympathetic response from a jury, or trying to find a redeeming or mitigating fact, for someone already convicted of a horrific crime--only so much can be constitutionally expected of defense counsel.

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