Strategery’s Refuge

Abstract:     
By popular account, the Supreme Court’s recent decisions on effective assistance of counsel in capital sentencing - aggressive critiques of counsel’s failure to investigate and present mitigating evidence - initiate an era of improved oversight of the quality of legal representation in death penalty cases. One would expect the new and improved jurisprudence to curb post hoc efforts by trial counsel to disguise subpar performance as a tactical decision, a practice that has long undercut the Strickland doctrine. But the shelters for post hoc rationalizations - the refuges for “strategery” - remain. Surveying decisions of the federal circuit courts since the turn of the century, this Article illustrates two reasons why, and explores solutions.

Foremost, the Article examines a perceptual divide among decision-makers (and counsel) over the mitigating value of explanatory life history evidence. The Article suggests that decision-makers’ perceptions of explanatory mitigation may depend less on the nature of the evidence and more on how the evidence is presented. This distinction is significant for eradicating post hoc rationalizations, because it renders the validity of counsel’s claims of judgment about certain evidence subject to the completeness of the investigative work and the coherence of the presentation to the jury.

Number of Pages in PDF File: 59

Accepted Paper Series