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In Burger v. Kemp, 483 U. S. 776, 794 (1987), this Court rejected an ineffective assistance claim in a case where defense counsel "could have made a more thorough investigation [of background mitigation evidence] than he did." Under the circumstances of that case, "counsel's decision not to mount an all-out investigation into petitioner's background in search of mitigating circumstances was supported by reasonable professional judgment." Ibid.
The question in the present case is whether the Court should establish a bright-line rule that a decision not to exhaustively investigate the defendant's background is never reasonable professional judgment. Quite simply, the question is whether Burger should be overruled. Because the case arises on habeas corpus, this question raises the threshold question of whether Burger can be overruled, given the limitations of Teague v. Lane, 489 U. S. 288 (1989) and 28 U. S. C. §2254(d).
The Sixth Amendment protects "the fundamental right to a fair trial." Strickland v. Washington, 466 U. S. 668, 684 (1984). Inherent in the right to a fair trial is the right to effective assistance of counsel. Ibid. "The benchmark for judging any claim of ineffectiveness must be whether counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result." Id., at 686. That principle applies to both trial and capital sentencing proceedings. Ibid.
With those considerations in mind, this Court developed the clearly established two-part test for evaluating ineffective assistance of counsel claims. Id., at 687. For a successful claim, a capital defendant has the burden of proving both prongs to the satisfaction of the reviewing court.
"First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable." Ibid.
Under the first part of the Strickland test, the defendant must rebut the presumption that counsel's performance was adequate by showing "that counsel's representation fell below an objective standard of reasonableness." Id., at 688. The reasonableness of counsel's performance must be evaluated at the time of counsel's conduct under the totality of the circumstances. Id., at 690.
"Thus, a court deciding an actual ineffectiveness claim must judge the reasonableness of counsel's challenged conduct on the facts of the particular case, viewed as of the time of counsel's conduct. A convicted defendant making a claim of ineffective assistance must identify the acts or omissions of counsel that are alleged not to have been the result of reasonable professional judgment. The court must then determine whether, in light of all the circumstances, the identified acts or omissions were outside the wide range of professionally competent assistance. In making that determination, the court should keep in mind that counsel's function, as elaborated in prevailing professional norms, is to make the adversarial process work in the particular case. At the same time, the court should recognize that counsel is strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment." Ibid.
There is no merit to the argument that Strickland generally requires defense counsel to conduct an exhaustive background investigation in all capital cases. To the contrary, in Strickland, this Court stated, "counsel has a duty to make reasonable investigations or to make areasonable decision that makes particular investigations unnecessary. In any ineffectiveness case, a particular decision not to investigate must be directly assessed for reasonableness in all the circumstances, applying a heavy measure of deference to counsel's judgments." Id., at 691 (emphasis added). Thus, Strickland does not mandate an exhaustive investigation in every capital case, but rather an attorney has discretion to decide what and how much to investigate so long as that decision is reasonable under the circumstances of the case.
There is a difference between strategic decisions to forgo further investigation of mitigating evidence, which take place prior to the penalty phase, see Burger v. Kemp, 483 U. S. 776 (1987), and decisions not to present mitigating evidence, which take place at the penalty phase. See Darden v. Wainwright, 477 U. S. 168 (1986). In Burger, supra, at 795, this Court held that defense counsel's decision not to pursue further investigation into the defendant's background after evaluating the mitigating evidence available to him was strategic and did not constitute ineffective assistance of counsel. In Darden, supra, at 186, this Court held that defense counsel's performance is not ineffective if, after a complete investigation has been conducted, defense counsel decides not to present mitigating evidence of the defendant's background because it is more harmful than beneficial. In other words, sometimes evidence of the defendant's background can act as a "double-edged sword" and defense counsel's strategic decision not to present that evidence satisfiesStrickland.
Contrary to the assertion of amicus ABA, see Brief for American Bar Association as Amicus Curiae 4 (ABA Brief), these two strategic decisions are not independent. They are closely connected. The decision to terminate further investigation of background evidence may be reasonable if counsel has enough information to form a judgment that another avenue is stronger. Given the general weakness of background-type mitigation, see infra at 24, it is not necessary to know every last detail before making this decision. In Burger, defense counsel "was aware of some, but not all," of the defendant's background information prior to trial. 483 U. S., at 790. The background evidence that might have been presented as mitigating concerned the defendant's "exceptionally unhappy and unstable childhood." Id., at 789. Prior to trial, defense counsel spoke with the defendant's mother several times, an attorney who had befriended the defendant, and also men stationed with the defendant at Fort Stewart, Georgia. Id., at 790-791. In addition, defense counsel reviewed psychologists' reports that were obtained with the help of the defendant's mother. Id., at 791. Based on a review of that evidence, defense counsel chose not to investigate the defendant's background any further, believing "that his client's interest would not be served by presenting this type of evidence." Ibid.
The defendant argued that defense counsel's failure to conduct a thorough investigation into his background was ineffective because, if he had done so, he would have discovered much more information about defendant's troubled family background. Id., at 793. This Court disagreed, stating that the background information, which suggested that the defendant had violent tendencies, was "at odds with the defense's strategy of portraying [defendant's] actions on the night of the murder as the result of [another man's] strong influence upon his will." Ibid. Most importantly, however, this Court stated, "[t]he record at the habeas corpus hearing does suggest that [defense counsel] could well have made a more thorough investigation than he did. Nevertheless, in considering claims of ineffective assistance of counsel, '[w]e address not what is prudent or appropriate, but only what is constitutionally compelled.' " Id., at 794 (quoting United States v. Cronic, 466 U. S. 648, 665, n. 38 (1984)) (emphasis added).
Based on defense counsel's reasonable decision that conducting an exhaustive investigation into the defendant's background would not have reduced the possibility that the jury would impose the death penalty, this Court held that decision was "supported by reasonable professional judgment" and did not run afoul of Strickland. Id., at 794-795. Burger focused on Strickland's mandate that, "strategic choices made after less than complete investigation are reasonable precisely to the extent that reasonable professional judgments support the limitations on investigation." 466 U. S., at 690-691. Because defense counsel in Burger decided that exhaustively investigating the defendant's background was not in his client's best interests, and doing so would reveal evidence that was inconsistent with the defense's strategy, under those circumstances it was reasonable to limit his investigation.
Amici in support of petitioner in this case urge this Court to adopt a rule that it is mandatory for defense counsel to conduct an exhaustive investigation into a capital defendant's background in all capital cases. In support of that argument, the ABA contends that their guidelines have "long stressed that investigation into mitigation evidence 'should comprise efforts to discover all reasonably available mitigating evidence and to rebut any aggravation evidence that may be introduced by the prosecutor.' " ABA Brief 13 (quoting ABA Death Penalty Guidelines, Guideline 11.4.1(c)). The ABA guidelines are precisely that, guidelines, not constitutional mandate. SeeStrickland, 466 U. S., at 688. (2) When this Court considers ineffectiveness claims, it does not address what is "prudent or appropriate," but rather only " 'what is constitutionally compelled.' " Burger, 483 U. S., at 794 (quoting Cronic, 466 U. S., at 665, n. 38). Conducting an exhaustive investigation in all capital cases is not constitutionally compelled. As we will explain, the ABA's suggestion that this type of investigation is mandatory in all capital cases is contrary to the precedents of this Court eschewing bright-line rules in ineffectiveness cases and incompatible with the limited time, money, and resources defense counsel has in representing capital defendants.
In Strickland, this Court refused to establish any strict requirements that an attorney must always follow in order to succeed against an ineffectiveness claim. See 466 U. S., at 688-689. This Court believed that establishing such strict "rules would interfere with the constitutionally protected independence of counsel and restrict the wide latitude counsel must have in making tactical decisions." Id., at 689. The key to the Sixth Amendment is ensuring that criminal defendants receive a fair trial, not improving the quality of legal representation generally. Ibid. This Court recently reaffirmed Strickland's prohibition of hard and set rules for attorneys in Roev.Flores-Ortega, 528 U. S. 470 (2000). In that case, the Ninth Circuit had established a bright-line rule that counsel must always file a notice of appeal, and that failing to do so was per se deficient unless the defendant specifically instructed counsel not to file. Id., at 478. This Court reversed, holding that such a bright-line rule was inconsistent with Strickland, because counsel's performance must be evaluated for reasonableness under the totality of the circumstances. Ibid.; see alsoBell v. Cone, 535 U. S. 685, 152 L. Ed. 2d 914, 931, 122 S. Ct. 1843, 1853-1854 (2002) (rejecting rigid rule that counsel can never waive closing argument).
There have been other opportunities for this Court to adopt a bright-line rule that defense counsel must always conduct an exhaustive background investigation in all capital cases. Consistently declining these invitations, this Court has instead used Strickland's reasonableness standard to conclude that a less than complete investigation into a capital defendant's background was sufficient under the circumstances. See Burger, supra; Darden, supra. In all of these cases, the test used was reasonableness, not a rigid rule.
If this Court were to adopt a per se rule that every defense attorney in every capital case must completely investigate every possible avenue of mitigation or their performance will be deemed ineffective, it would take away the wide latitude attorneys have in deciding how to best represent their clients. Law is an art, not a science, and a defense that may work well for one client or one case may not work well for another. Additionally, mandating defense counsel to conduct an exhaustive investigation in every capital case, when in some instances it may be unnecessary, would further elevate the expense associated with trying capital cases. This added expense may force some states and localities to forego justice and accept an unjustly lenient sentence because they could not afford the crushing financial burden. See Nappan, Now, Only Wealthy Counties Can Afford to Execute People, L. A. Daily J., Aug. 22, 1990, p. 6; see also part I-C, infra, at 15-18. Indeed, precisely this result may be behind the efforts of opponents of capital punishment to deliberately inflate the cost.
Amici defense lawyers contend that the Fourth Circuit's decision in this case "amounts to a per se rule that a lawyer is not required to investigate mitigating information in the defendant's background in a case in which the lawyer plans to contest aspects of the defendant's guilt in the sentencing phase." See Brief for National Association of Criminal Defense Lawyers, et al., as Amici Curiae 13. Amicimisconstrue the Fourth Circuit's decision. The Fourth Circuit holds that if defense counsel is aware of mitigating evidence in the defendant's background, based on a reasonable review of that evidence, counsel may decide that mounting an exhaustive investigation would not be in the client's best interest. If counsel believed a different strategy is more beneficial to the client and decided to focus their resources there instead, that may be considered sound trial strategy, and the decision is subject to great deference under Strickland.Wiggins v. Corcoran, 288 F. 3d 629, 643 (CA4 2002). The opinion does not, as amici NACDL contend, hold that defense counsel is excused from investigating mitigating evidence altogether. That would run afoul of this Court's decision in Williams v. Taylor, 529 U. S. 362 (2000).
In Williams, this Court found that defense counsel's failure to conduct a background investigation and consequent failure to present any mitigating evidence of the defendant's background during sentencing was not sound trial strategy. See id., at 395. The defendant's attorney did not seek out the defendant's juvenile and social service records because he was under the mistaken belief that state law prohibited him from doing so. Ibid. Williams is consistent with the precedents discussed above, however, because in Williams defense counsel did not and could not make any strategic decisions. This is because defense counsel had no evidence at all to consider and therefore could not make a reasoned decision about whether mitigation evidence of the defendant's background should be further investigated. Kimmelman v. Morrison, 477 U. S. 365 (1986) is similar. In that case, defense counsel's complete failure to conduct any pre-trial discovery was not a strategic decision because it was based on defense counsel's erroneous belief that the prosecution "was obliged to take the initiative and turn over all of its inculpatory evidence to the defense . . . ." Id., at 385.
Another amicus brief in this case similarly employs the straw man fallacy, decrying "the Fourth Circuit's suggestion that a duty to investigate does not exist, 288 F. 3d, at 640-41 . . . ." Brief of Janet F. Reno, et al., as Amici Curiae17. Such a suggestion would indeed be appalling, but the Fourth Circuit said nothing of the sort. Here is what the cited passage actually says:
"Williams does not establish a per se rule that counsel must develop and present an exhaustive social history in order to effectively represent a client in a capital murder case. It merely reaffirms the long settled rule, in the context of a particularly glaring failure of counsel's duty to investigate, that defendants have a constitutional right to provide a factfinder with relevant mitigating evidence. [Citations.] Williams does require that counsel have some knowledge about potential avenues of mitigation on behalf of a client in order to make a decision that can be fairly characterized as a reasonable strategic choice. This, however, has always been the rule underStrickland, and the particular quantum of knowledge required depends on the facts and circumstances of each particular case. SeeStrickland, 466 U. S., at 691." Wiggins v. Corcoran, 288 F. 3d, at 640-641.
The Fourth Circuit simply recognized the distinction between a duty to make a reasonable investigation, which includes the discretion to cut off a particular avenue upon determining it is unlikely to be fruitful, and an iron rule of exhaustive investigations in every case, which this Court has repeatedly rejected.
This Court's precedents indicate that even though there is a strong presumption of attorney competence, and that most decisions made by attorneys are considered sound trial strategy, in situations where defense counsel completely fails to conduct any investigation into the defendant's background, whether due to a mistake of fact or law, or due to ignorance, then that decision cannot be considered sound trial strategy. The present case is readily distinguishable from Williams and much more akin to Burger. Defense counsel's decision to pursue the defense strategy of residual doubt and present that to the jury rather than continue an exhaustive search into the defendant's background was objectively reasonable under the totality of the circumstances existing at the time defense counsel made their decision.
"Defense requests for investigative funds should be approved if it appears that the avenue of investigation is one that a reasonable attorney, with funds but not unlimited funds, would undertake." National Judicial College and National Conference of State Trial Judges, Capital Cases Benchbook 1-5 (1996) (emphasis added). Petitioner and supporting amici seek, in effect, to delete the condition in this statement and create a constitutional right to expend unlimited funds in the penalty phase of capital cases.
It is no secret that the cost of litigating capital cases from beginning to end is high. See Gold, Counties Struggle with High Cost of Prosecuting Death-Penalty Cases, Wall Street Journal, Jan. 9, 2002, p. B1; New York State Defenders Association, Capital Losses: The Price of the Death Penalty for New York State 26 (April 1, 1982). To mandate that defense counsel must always conduct an exhaustive search into a capital defendant's background in all capital cases, regardless of the circumstances, would not only cause the already high cost of litigating these cases to soar even higher, but it would lengthen the process as well.
To illustrate the effect such a rule would have on the already limited time and resources defense counsel has in litigating capital cases, it is necessary to describe what such an investigation process would entail. Exhaustive investigation into a capital defendant's background starts before the defendant's birth with obtaining information about the defendant's prenatal care and the birth process itself. Defense counsel must determine if there is any indication of head trauma, fetal alcohol syndrome, or drug addiction by the mother. The investigation would then move on to the defendant's family life, school records, work records, military records, criminal records of the defendant and his family, mental health records of the defendant and his family, substance abuse issues of both defendant and his family, etc. Lyon, Defending the Death Penalty Case: What Makes Death Different? 42 Mercer L. Rev. 695, 703-708 (1991); see also ABA Brief 14-15 (quoting ABA Death Penalty Guideline 11.4.1(D)(2)(c)). During the search of all those records, defense counsel would also have to attempt to locate and interview people involved at each stage of the defendant's life, and determine whether it is advantageous to use them as character witnesses during the penalty phase. Costanzo & White, An Overview of the Death Penalty and Capital Trials: History, Current Status, Legal Procedures, and Cost, 50 J. of Soc. Issues 1, 10 (1994). This process may require defense counsel to explore the past "twenty, thirty, or forty years" of the defendant's life. Garey, Comment, The Cost of Taking a Life: Dollars and Sense of the Death Penalty, 18 U. C. D. L. Rev. 1221, 1251 (1985).
"The investigation often includes extensive travel throughout the country and requires a skilled investigator who can locate persons from the defendant's past and persuade them to participate in a death penalty trial. An investigation for capital trials is generally three to five times longer than that for noncapital trials, and may take as long as two years." Id., at 1252 (footnote omitted).
Although mitigation experts are available if defense counsel lacks the time to conduct such an exhaustive investigation on his or her own, the government is reluctant to pay for such experts. See Jones, Damned If You Do, Damned If You Don't, The Use of Mitigation Experts in Death Penalty Litigation, 24 Am. J. Crim. L. 359, 372 (1997). Generally, unless defense counsel can show the need for such an expert and the need for such evidence, courts will not authorize such funding. See id., at 377. Nor should they.
Such an exhaustive investigation into every capital defendant's background, when doing so would be unnecessary under the circumstances, would be a great waste of judicial, state, and human resources. This Court recognized that fact in Burger when it found reasonable defense counsel's strategic decision not to mount an exhaustive investigation after determining it was not in his client's best interest to pursue a mitigation theory.
Both the defendant and supporting amici contend that to ensure that the defendant receives a fair trial, the sentencing jury must be given the opportunity to consider relevant mitigating evidence of the defendant's background and character. See Brief for Petitioner 21-23; ABA Brief 7-10. Because of defense counsel's limited investigation in this case, the defendant and supporting amici contend that the defendant's rights were violated because the jury was not given the opportunity to consider this evidence. Although capital defendants have a right to present almost any mitigation evidence that they believe is necessary at sentencing, see Penry v. Lynaugh, 492 U. S. 302, 328 (1989), this right does not create a per se rule that every avenue of mitigation evidence of a capital defendant's background must always be exhaustively investigated in all capital cases. Rather, if counsel makes a strategic decision that it is in the best interests of the client to investigate and present the defendant's background, then the jury must be able to give effect to that evidence and use that evidence in imposing its sentence, and government action cannot interfere with the jury's ability to consider it. See id., at 327-328; see also Eddings v. Oklahoma, 455 U. S. 104, 113-114 (1982); Lockett v. Ohio, 438 U. S. 586, 605 (1978) (plurality). However, although the jury must be able to consider and give effect to that mitigation evidence if it is presented to them, there is no requirement that the juryaccept it. See Eddings, supra, at 115; see also Bilinois, Moral Appropriateness, Capital Punishment, and the LockettDoctrine, 82 J. Crim. L. & Criminology 283, 311 (1991). Counsel's decision not to present evidence they believe to be weak does not violate theLockett/Eddings rule.
Legal representation includes case management, as well as in-court advocacy. Lawyers who represent paying clients must always keep an eye on expenditures and not run up unnecessary expenses or fees. To spend time and charge fees in excess of what is actually needed to do the job is unethical. See ABA Model Rules of Professional Conduct, Rule 1.5(a)(1) (2001 ed.). The Sixth Amendment does not exempt appointed counsel from the management constraints of limited resources that all other lawyers, including prosecutors, must deal with.
It would be exceedingly odd for the Constitution to create a right to unlimited funding for the penalty phase of a capital case, when no such right exists in the guilt phase of either capital or life-imprisonment cases. The determination of the proper punishment for a guilty murderer is important, to be sure, but nowhere near as important as the accurate determination of whether the defendant is really the person who committed the murder. The wrongful conviction of a person who is actually innocent is an injustice of vastly greater magnitude than any death sentence imposed on an actually guilty murderer, regardless of the mitigating circumstances. See Schlupv.Delo, 513 U. S. 298, 324-325 (1995). To give capital defendants the keys to the treasury to litigate issues having nothing to do with guilt, while those facing life imprisonment for a crime they may not have committed must make do with much less, would be a gross misplacement of priorities.
An indigent defendant is entitled to competent assistance operating within reasonable limits on resources. Operating within limits means terminating a line of investigation once it has been investigated far enough to determine that it will not be used. Under the clearly established law of Strickland and Burger, that is a strategic decision entitled to deference.
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2. For the reasons discussed in part III, infra, amicus CJLF submits that ABA guidelines are entitled to even less weight today
thanStrickland indicated in 1984.