Do defense lawyers intentionally throw death penalty cases?

That’s the intriguing suggestion offered — perhaps — by Chief Judge Danny J. Boggs of the US 6th Circuit Court of Appeals in a case decided yesterday.  Poindexter v. Mitchell was an appeal from a district court’s decision to grant habeas relief to Poindexter, who’d been convicted and sentenced to death back in 1985.  The appeals court rejected the claim that trial counsel had been incompetent during the guilt phase, but agreed that counsel had failed to properly investigate Poindexter’s troubled family background, and that this consituted ineffective assistance and required vacating the conviction.

In his concurring opinion, Judge Boggs noted that research that’s been done in capital cases has shown that evidence regarding the defendant’s poor family background has a minimal impact on the jury, and might actually be counterproductive:  a jury which hears that the defendant was horribly abused and mistreated might conclude that he’s such “damaged goods” that his life isn’t worth preserving.  According to Judge Boggs, then, any “sentient attorney” representing a capital defendant would have to come to this conclusion:

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.

In other words, the most competent representation a lawyer can provide is to incompetently fail to investigate and present evidence of his client’s troubled background.

Whether Judge Boggs is simply noting an irony here, or actually believes that attorneys are taking a dive in death penalty cases, isn’t clear.  The other two judges on the panel wrote concurring opinions expressing disagreement with his suggestion, and Judge Daughtery was particularly outraged, finding his comments “truly disturbing,” and that the problems Judge Boggs addressed are not due to some “vast, diabolical, defense-bar conspiracy to derail our criminal justice system,” but 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.”

Judge Boggs’ comment about the irony of the situation — that a lawyer does a better job for his client in a death penalty case by doing a shoddy job in the mitigation phase — is unquestionably accurate, although his implicit suggestion that lawyers are consciously deciding to do just that is flatly absurd.  In his defense, he argues that he’s not making any such implicit suggestion, but that it is simply a result of current doctrine on the death penalty, and that ”if a straightforward analysis of the consequences of legal doctrine leads to unpalatable conclusions, that is the result of the doctrine, not of those who explicate it.”  What Judge Boggs might not have considered is that this problem is not a result of a particular doctrine within capital punishment law, but the result of the entire death penalty scheme.