The Revised ABA Guidelines and the Duties of Lawyers and Judges in Capital Post-conviction Proceedings

I. INTRODUCTION On February 10, 2003, the American Bar Association approved the revised edition of its Guidelines for the Appointment and Performance of Defense Counsel in Death Penalty Cases. (1) Their purpose is to articulate the "national standard of practice for the defense of capital cases"; (2) they "are not aspirational. Instead, they embody the current consensus about what is required to provide effective defense representation in capital cases." (3) Because the ABA does not oppose the death penalty but does believe in justice, (4) it sets as its bedrock criterion the principle that "any jurisdiction wishing to impose a death sentence must at minimum provide representation that comports with these Guidelines." (5) Significantly for the special concerns of this issue of the Journal, the Guidelines apply from the moment the client is taken into custody and extend to all stages of every case in which the jurisdiction may be entitled to seek the death penalty, including ... post-conviction review, (6) clemency proceedings, and any connected litigation. (7) As detailed in the three Parts of this Article that follow, a review of the revised Guidelines with a special focus on their implications for capital post-conviction proceedings reveals that: 1. There is a right to the effective assistance of counsel beyond direct appeal. The conventional wisdom, that the federal Constitution guarantees no such right and therefore none exists, is flawed on multiple levels. It is a perilous foundation on which to ground any legal conclusion, and an unacceptable one on which to build a just system for adjudicating capital cases. 2. The defense bar will need to expand its traditional concept of what constitutes a lawyering task, and recognize that lead counsel in a properly conducted death penalty case is the captain of a defense team of lawyers and non-lawyers deployed to pursue the best interests of the client. (8) For example, a lawyer who fails to conduct a broad-ranging investigation of both the guilt and penalty phases--taking responsibility for duties traditionally relegated to forensic experts or social workers or, more commonly, not performed at all--is ineffective. (9) Similarly, an effective capital post-conviction lawyer does not just litigate--although he or she most certainly does litigate, and to a greater degree than traditionally recognized (10)--but also pursues with vigor the possibility of an agreed-upon disposition of the case, (11) seeking that goal through a variety of means. (12) 3. Judges (13) will need to recognize the foregoing in compensating counsel and other members of the defense team. Realistically, this will involve a significant increase in the amount of resources currently provided. (14) That is the ineluctable consequence of a simple fact: "The death penalty is expensive." (15) But only by paying its costs can we have confidence in the appropriateness of executions that will ultimately be carried out in the name of all of us. Money paid for effective post-conviction representation in capital cases is not a windfall bestowed upon defense lawyers but rather an investment in the system of justice." (16) II. EFFECTIVE ASSISTANCE OF POST-CONVICTION COUNSEL: A LEGAL RIGHT THAT IMPROVES THE JUSTICE SYSTEM In applying a uniform standard of competence to capital defense lawyers from the moment of arrest through final action on executive clemency, the Guidelines recognize current legal and practical realities. Although, to be sure, as a matter of formal doctrine there is presently no federal constitutional right to the assistance of counsel to pursue collateral attacks on state capital convictions, the case on which that proposition rests is shaky at best, (17) and unlikely to survive the vigorous attacks that will surely be leveled at it in the years to come. (18) In light of the accumulated experience of the intervening years reflected in the Guidelines, (19) the Justices' recent expressed concerns about the quality of defense representation in capital cases, (20) and the renewed vigor with which the Court has scrutinized the performance of counsel, (21) there is a good chance that within the next few years this precedent will be radically narrowed if not overruled outright. …