Tactical Ineffective Assistance in Capital Trials

47 Pages Posted: 24 May 2008 Last revised: 29 Aug 2008

See all articles by Kyle Graham

Kyle Graham

Santa Clara University School of Law

Date Written: 2008


Are defense attorneys sandbagging in their death-penalty cases? In Poindexter v. Mitchell, a habeas corpus case decided in 2006, Chief Judge Danny Boggs of the United States Court of Appeals for the Sixth Circuit wrote that by conducting a deliberately defective investigation into mitigation evidence that might otherwise have been presented at the penalty phase of a capital trial, a defense attorney can virtually guarantee that any death sentence the jury returns will be vacated in later proceedings. The likelihood of such an outcome, Boggs wrote, will more than make up for the somewhat greater chance that a jury that does not hear the missing mitigation evidence will return a death sentence in the first place. Boggs and his concurring colleague, Judge Richard Suhrheinrich, challenged conventional wisdom holding that sandbagging - the intentional withholding of (or failure to develop) meritorious arguments or useful evidence at trial by criminal defense attorneys, for the purpose of undermining a conviction or sentence in later proceedings - does not work. But these critiques of sandbagging have focused upon a different type of intentional error, the failure to raise timely objections at trial. Tactical Ineffective Assistance in Capital Trials focuses on whether defense attorneys in death-penalty cases have an incentive, in the form of better results for their clients, to ignore or bury mitigation evidence. This Comment concludes that the Boggs hypothesis suffers from several flaws, and that this particular form of sandbagging typically (though not necessarily always) represents bad strategy. Not only will a defense attorney contemplating this type of ineffective assistance rarely possesses the knowledge and perspective that will allow him or her to foresee the utility of sandbagging in a given case, but deliberate ineffective assistance through a failure to investigate or present mitigation evidence may backfire for a number of reasons.

Keywords: criminal law, criminal procedure

JEL Classification: K14

Suggested Citation

Graham, Kyle, Tactical Ineffective Assistance in Capital Trials (2008). American University Law Review, Vol. 57, p. 1645, 2008. Available at SSRN: https://ssrn.com/abstract=1131987

Kyle Graham (Contact Author)

Santa Clara University School of Law ( email )

500 El Camino Real
Santa Clara, CA 95053
United States

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