Judicial Notebook

On Sept. 1, 1993, Holly Wood, a black man with an IQ of less than 70, sneaked into his girlfriend's bedroom, shotgun in hand and murder on his mind. He later bragged that he "blew her brains out and all she did was wiggle." Although Wood's jury found him guilty of murder and sentenced him to death, questions remain about the effectiveness of his attorneys during his trial's penalty phase: Wood claimed his counsel failed to present relevant mitigating evidence regarding his lack of intellectual functioning, information that might have made the jury less likely to sentence him to death. This fall, the U.S. Supreme Court will review the standards governing the effectiveness of counsel in capital trials to determine whether failing to present mitigating evidence is due to attorney ineptitude or trial strategy (Wood v. Allen, No. 08-9156).

The law behind ineffective assistance of counsel

The Sixth Amendment provides that "in all criminal prosecutions, the accused shall have the assistance of counsel for his defense." Such effectiveness of counsel arguments are governed by the Supreme Court's ruling in Strickland v. Washington, which posited a two-pronged approach to deciding whether counsel is ineffective: First, the defendant must show that the attorney's performance was unreasonable, and second, he or she must show that the trial outcome would have been different if the attorney had been more effective.

In Wood, the state court and subsequent federal appellate courts ruled that the attorney's conduct was effective. First, although the attorney in charge of presenting evidence in Wood's penalty phase 3. a novice lawyer with little courtroom experience—omitted a psychological report on Wood's intellectual functioning, the courts found this omission to be a reasonable trial strategy since the attorney clearly had information about the defendant's mental state but decided not to use it. Second, lower courts saw little prejudicial impact in the omission of such information, as the gravity of the brutal crime could reasonably have led to a similar sentence.

The Strickland standard is particularly interesting from a psychological perspective. After all, it is easier to argue that an attorney was ineffective during the guilt phase of a capital or non-capital trial, where jurors receive legal instructions and evaluate facts to determine whether the defendant is guilty. The penalty phase in capital trials, on the other hand, requires subjective decisions about whether the defendant should live or die. This begs the question: Would a strategic decision to omit mitigating information relevant to such life or death issues sway the jury?

The psychology behind ineffective counsel

The capital jury is unique in that jurors must be "death-qualified": those who have qualms about the death penalty cannot participate. Scholars have investigated the differences between the two types of jurors and have found that death-qualified jurors are more likely to support the prosecution, to mistrust the defendant and to favor crime control measures over due-process concerns. For example, Brooke Butler, PhD, and Gary Moran, PhD, found that death qualified jurors are significantly more likely to notice and endorse aggravating factors (factors that make the crime more worthy of the death penalty) and less likely to notice and endorse mitigating factors (any factor that makes the crime less worthy of death, such as Wood's borderline intelligence). In fact, capital jurors often misunderstand the concept of mitigation, interpreting mitigating evidence as aggravating.

Given these findings, the presence or absence of mitigating evidence may have little impact on capital jurors' final verdicts, and appeals based on the ineffective assistance of counsel may never be able to pass the second Strickland prong.

Since this scenario is, of course, not ideal, the focus should be on counsel's effectiveness in helping jurors understand all aspects of the death-penalty process, especially mitigation. To this end, psycho-legal researchers have called for the use of mitigation experts in capital cases—specialists hired to investigate and present mitigating information to capital jurors in a thorough, easily comprehensible manner. Ineffective assistance of counsel appeals should turn on whether counsel's performance was in line with the behavior of such experts, rather than merely presuming the attorney's competency.

"Judicial Notebook" is a project of APA Div. 9 (Society for the Psychological Study of Social Issues).