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II. Defense counsel's tactical decision to
forgo further investigation into the
defendant's social history background was objectively reasonable under the circumstances of this case.

The Maryland Court of Appeals correctly concluded that the defendant's Sixth Amendment right to counsel was not violated in this case. Defense counsel's tactical decision to pursue one avenue of mitigation over another was objectively reasonable and did not prejudice the defendant. For the defendant to meet his burden of proving a claim of constitutionally ineffective assistance of counsel, he must establish that counsel's performance was deficient and that, because of the deficient performance, prejudice resulted. Stricklandv.Washington, 466 U. S. 668, 687 (1984).

As in Burger v. Kemp, 483 U. S. 776 (1987), defense counsel in this case did investigate and were aware of the defendant's difficult childhood. Specifically, they knew

"[defendant] had been removed from his natural mother as a result of a finding of neglect and abuse; that there were reports of sexual abuse at one of his foster homes; that he had his hands burned as a child as a result of his mother's abuse; that there had been homosexual overtures made toward him by a job corps supervisor; and that he was borderline mentally retarded." Wiggins v. Corcoran, 288 F. 3d 629, 641 (CA4 2002). ⁽³⁾

Defense counsel were made aware of this information through a presentence investigation report and the defendant's social service records. See Wiggins v. State, 352 Md. 580, 608-609, 724 A. 2d 1, 15 (1999). Defense counsel also knew that the jury could consider this information as mitigating. Id., at 609, 724 A. 2d, at 15. Armed with this information, defense counsel decided very early on to pursue a residual doubt theory at the penalty phase. The defendant takes issue with that decision arguing, "[d]eciding at the outset to retry guilt rather than develop a case in mitigation is not a 'reasonable decision' that makes investigation into mitigation unnecessary, for the obvious reason that counsel cannot know until after investigation whether the mitigation case would be a stronger basis for avoiding a death sentence." Brief for Petitioner 30. Common practice, however, is to "[d]evelop a theory of trial that compliments and does not fight with the theory of mitigation. It is not good to put on a 'he didn't do it' defense and 'he is sorry he did it' mitigation. This just does not work." Lyon, Defending the Death Penalty Case: What Makes Death Different? 42 Mercer L. Rev. 695, 708 (1991).

The theory presented at the guilt stage was that of innocence or at least reduced culpability. Defense counsel argued that the case against the defendant was entirely circumstantial, and he did not murder the victim. Based on their belief that the evidence against the defendant was weak, defense counsel made the strategic decision early on to carry that theory all the way through the penalty phase. Based on the evidence of the defendant's background that they had in front of them, they decided it was not in their client's best interests to pursue a "background" mitigation theory, since it was inconsistent with their theory at the guilt stage, and in their experience would work to the detriment of the defendant. They instead decided to focus their time and resources on developing and presenting a residual doubt theory. See Wiggins, 288 F. 3d, at 642-643.

Defense counsel were in an advantageous position in that the jury presiding at sentencing did not sit at the guilt phase of the trial. Id., at 642. In essence, defense counsel would start with a clean slate. Because under Maryland's death penalty law the sentencing jury had to find beyond a reasonable doubt that the defendant was the actual perpetrator of the murder, see id., at 635, n. 2, defense counsel decided to take advantage of the "clean slate" by foregoing a case in mitigation based on the defendant's social history, and instead pursue a theory that the defendant was not the actual killer. Lingering doubt about a criminal defendant's guilt is one of the most effective strategies for avoiding the death penalty. See Tarver v. Hopper, 169 F. 3d 710, 715 (CA11 1999).

" 'Residual doubt' over the defendant's guilt is the most powerful 'mitigating' fact. -- [A study of the opinions of jurors in capital cases] suggests that the best thing a capital defendant can do to improve his chances of receiving a life sentence has nothing to do with mitigating evidence strictly speaking. The best thing he can do, all else being equal, is to raise doubt about his guilt." Garvey, Aggravation and Mitigation in Capital Cases: What do Jurors Think?, 98 Colum. L. Rev. 1538, 1563 (1998) (emphasis in original; footnote omitted).

Although defense counsel could have investigated and presented alternate theories to the sentencing jury, i.e., residual doubt and a case in mitigation based on defendant's social history, nothing in this Court's precedents requires defense counsel to choose that route. In fact, doing just that could have been counterproductive and done more harm to the defendant's case than good. Defense counsel presented to the sentencing jury a case of residual doubt about the defendant's participation in the murder. Counsel was trying to create reasonable doubt in the minds of the jury, because, if this effort succeeded, the death penalty would be taken completely off the table as an option. SeeWiggins, 288 F. 3d, at 635. After presenting the "residual doubt" evidence, should counsel then turn the tables and state, "on the other hand, if you do not believe any of the evidence I just presented to you, and you believe that the defendant is in fact the actual killer, then you should not impose the death penalty because of the defendant's horrific childhood and borderline intellectual functioning"? The two theories clash and defense counsel must have great leeway to "winnow out" weaker arguments and focus instead on those that are the strongest and in the best interests of their client. See, e.g., Jones v. Barnes, 463 U. S. 745, 751-752 (1983); see also Dardenv.Wainwright, 477 U. S. 168, 186 (1986) (sometimes presenting evidence of defendant's background in mitigation can do more harm than good); Burger v. Kemp, 483 U. S. 776, 791-792 (1987) (same). Defense counsel was cognizant of the conflict in the theories from the beginning and made a conscious decision to focus their resources on, and to pursue only, the residual doubt theory. Wiggins, 288 F. 3d, at 642. In fact, lead defense counsel "stated that he chose to focus on one theory of Wiggins' case at sentencing because the 'shotgun approach' often confuses the issues and works to the detriment of the defendant." Id., at 643.

Even in situations where there is not a conflict in defense theories, defense counsel may decide not to present background evidence in mitigation because it could still be harmful to the presentation of the defense's case. This Court has noted that counsel's decision not to present a conflicting theory to the jury or to withhold evidence that may act as a double-edged sword, and thus to the detriment of the defendant, does not run afoul of the Sixth Amendment. See Burger, 483 U. S., at 793, 795-796; Darden, 477 U. S., at 186-187. Those holdings, however, do not imply that defense counsel must always present to the jury every possible nonconflicting theory to "see what sticks." Rather, doing just that would unduly clutter the jury's thought process and distract from the strongest theory of the case. To win over a jury, defense counsel must have the discretion to rely upon their expertise to focus upon the most persuasive theory of the case and leave less persuasive theories on the cutting room floor.

The trial lawyer's job is to convince a jury of twelve ordinary folks, not a panel of appellate judges. This is an important difference.

"Do not argue in the alternative. In law school and in practice before judges, we all become comfortable arguing in the alternative. Real people (as opposed to attorneys!) do not understand the theory of arguing in the alternative. When they hear an attorney say, 'Even if I am wrong, about point one, I am right about point two,' real people interpret this as an admission that the attorney is indeed wrong about point one. Even worse, the attorney's lengthy, but now conceded, argument about point one diminishes his credibility on point two!" S. Easton, How to Win Jury Trials: Building Credibility with Judges and Jurors 18-19 (1998) (emphasis added).

Based on his or her experience, defense counsel is in the better position to determine how the jury will perceive evidence of the defendant's social history background. Under Strickland, defense counsel merely need to show that his or her decision not to present background evidence to a particular jury was reasonable under the circumstances.

The proposition that the "abuse excuse" type of evidence must always be exhaustively investigated before deciding whether to use it seems to rest ultimately on a belief that this type of evidence is exceptionally persuasive. This premise is flawed.

In California v. Brown, 479 U. S. 538 (1987), Justice O'Connor referred to a "belief, long held by this society, that defendants who commit criminal acts that are attributable to a disadvantaged background . . . may be less culpable than defendants who have no such excuse." Id., at 545 (concurring opinion) (emphasis added). This belief is widely held, but it is not universally held. In particular, the premise that the crime is attributable to the background is rejected by a great many people. Most people who grow up poor or who suffer abuse at the hands of an alcoholic stepparent do not become murderers. Some of them grow up to be President. Some may be sitting on the jury.

A survey of jurors indicates that childhood poverty is an exceedingly weak mitigating circumstance, with 83.6% giving it no weight at all. Garvey, 98 Colum. L. Rev., at 1559. Childhood abuse is rejected as mitigating by nearly two-thirds. Id., at 1559, 1565. Eddingsv.Oklahoma, 455 U. S. 104, 115 (1982) noted that "such evidence properly may be given little weight," and it appears that jurors often do exactly that. In contrast, residual doubt of guilt is far and away the most powerful mitigating factor. Garvey, supra, at 1563 ⁽⁴⁾; supra, at 21.

Eddings, 455 U. S., at 117, requires that evidence of this type be considered if proffered, but neither Eddings alone nor Eddings in conjunction with Strickland requires that it be proffered in every case where it is available. In a case where other mitigating factors are available, especially the exceptionally powerful residual doubt, counsel may reasonably conclude the "background" evidence will detract from rather than enhance the defense.

In this case, defense counsel considered the facts and decided that pursuing a residual doubt defense to the sentencing jury would be the best way to defend their client. See Wiggins, 288 F. 3d, at 641-642. The fact that it was not successful is irrelevant to whether counsel's choice was objectively reasonable at the time it was made. See Strickland, 466 U. S., at 689 ("A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time.")

Under the facts of this case, defense counsel knew of and were aware of the defendant's background. Based on the information they had, they decided that mounting an exhaustive search into the defendant's background would be a waste of their time and resources, because pursuing a residual doubt defense was better for their client. That was sound trial strategy. Because this case falls within the "wide latitude counsel must have in making tactical decisions[,]" Strickland, 466 U. S., at 689, defense counsel provided objectively reasonable effective assistance and satisfied the first Strickland prong.

III. The ABA's position, as such, is entitled to
no special weight.

The American Bar Association has filed a brief in the present case as amicus curiae in support of the defendant. The ABA asks this Court to accept its guidelines as the consensus of the American legal profession. See Brief for American Bar Association as Amicus Curiae 4. This claim requires the closest scrutiny.

The ABA brief in the present case appears to be at least the fourteenth consecutive brief filed in this Court by the ABA on the defense side in criminal cases in the last ten years, with zero briefs in support of the prosecution during that period. ⁽⁵⁾ See Federalist Society Criminal Law and Procedure Practice Group, The ABA and Criminal Justice Issues 5-6 (1997) (5 cases); American Bar Association, ABA Amicus Briefs, http://www.abanet.org/litigation/committee/amicus/abapolicy.doc (viewed Feb. 11, 2003) (6 criminal cases); Brief for American Bar Association as Amicus Curiae in McCarver v. North Carolina, No. 00-8727; Atkins v. Virginia, 534 U. S. 1053 (2001) (granting motion of ABA, et al., to consider their McCarver briefs in Atkins). There is certainly no shortage of worthy cases in which an unbiased bar association might support prosecutors. See, e.g., Calderon v. Ashmus, 523 U. S. 740, 743 (1998) (attorneys enjoined by a judge from even arguing an entirely plausible legal position in the interest of their client, the state, in other cases pending before other judges); Scheidegger, ABA Briefs in the 1997-98 Supreme Court Term, 2 Criminal Law News, No. 3, p. 12 (Federalist Society, Winter 1998).

The ABA's uniform tilt to one side is not limited to its activities in the judicial branch. An analysis of the ABA's legislative priorities over a three-year period, as listed in the ABA Washington Letter, revealed eleven issues with clear prosecution and defense sides. The ABA position was the defense position in eleven out of eleven. See ABA and Criminal Justice Issues, supra, at 8-9.

If numbers alone can ever raise an inference of bias, this lengthy and extensive record of uniformly coming down on one side makes a nearly conclusive case that the ABA represents the defense view in criminal matters and not the whole profession. It is simply not credible that any kind of evenhanded decision-making process could result in such uniformity. See Teamsters v. United States, 431 U. S. 324, 342, n. 23 (1977) (" 'the inexorable zero' "). Even organizations which are frankly advocates for one side of the debate cross over on occasion. See, e.g., Brief for American Civil Liberties Union as Amicus Curiae in Wisconsin v. Mitchell, No. 92-515 (supporting prosecution); Brief for Criminal Justice Legal Foundation as Amicus Curiae in Powers v. Ohio, No. 89-5011 (supporting defense).

Prosecutors are members of the profession. So, too, are those attorneys who are nongovernment advocates for victims' rights. A genuine consensus of the profession on the minimum standards to constitute effective assistance of counsel would be a set of standards that major, reputable organizations on both sides of the divide had come together and agreed upon. If the ABA's guidelines represent a consensus, where is the endorsement by the National District Attorneys' Association, the National Association of Attorneys General, or any other substantial, reputable organizations on law enforcement or victims' side of the aisle? No such concurrence is cited in the ABA's brief.

Adoption of a policy by the ABA itself certainly does not prove a consensus of the profession, or even provide significant evidence of it. As long ago as 1992, the ABA's own committee noted the decline in ABA participation by prosecutors, due in large part to the ABA being "captive to the narrow adversarial interests of the defense bar." American Bar Association Advisory Committee on the Prosecution Function, Prosecutors and the ABA 1, 31-32 (1992) (ABA Advisory Committee). As the briefs and legislative positions described above demonstrate, the few prosecutors who have not yet voted with their feet are routinely steamrollered in the process of determining ABA positions. See also ABA Prosecutor Dissent to ABA House Report No. 107 (Feb. 1997) (on moratorium resolution), http://www.abanet.org/crimjust/prosec.html#dissent.

The ABA once had a special place as the voice of the profession. Ten years ago, its own committee warned that status was "in grave danger." ABA Advisory Committee, at 1. The ABA did nothing to correct the situation, and it has only gotten worse. The executive branch has already recognized the reality that the ABA is now just another interest group among many. See Alberto Gonzales, Letter to ABA President Martha Barnett (Mar. 22, 2001), http://www.whitehouse.gov/news /releases/2001/03/20010322-5.html. The judicial branch should face the same reality.

The ABA Death Penalty Guidelines are the position of one interest group on one side of the criminal law debate. They warrant no special weight in this Court's consideration of this case.

IV. Teague and AEDPA preclude overruling
Burger in this habeas case.

The present case arises on federal habeas corpus. Consequently, two additional limitations on a federal court's ability to grant relief apply. First, the rule of Teague v. Lane, 489 U. S. 288 (1989) (plurality opinion), precludes the creation or application of new rules, with exceptions not applicable here. Second, 28 U. S. C. §2254(d), adopted in the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), limits the scope of the federal court's review.

Strickland v. Washington, 466 U. S. 668 (1984) is both an "old rule" for Teague and "clearly established Federal law" for AEDPA. SeeWilliams v. Taylor, 529 U. S. 362, 390-391 (2000). Burger v. Kemp, 483 U. S. 776 (1987) is also established law. As discussed earlier, the proposition that a lawyer may, consistently with the requirement of effective assistance, terminate further inquiry into "background" mitigation evidence, once he or she knows the general nature of what is available and decides to pursue a different strategy, is consistent with Strickland, see supra, at 8, and is the holding of Burger. See supra, at 10. Adoption of a per se rule to the contrary would be an overruling of precedent and the imposition of a new burden, the quintessential "new rule." See Butler v. McKellar, 494 U. S. 407, 412 (1990). ⁽⁶⁾

Nor is the Maryland Court of Appeals' application of the rules to the facts of this case anything approaching "unreasonable." As discussed supra, comparing the facts of the present case with this Court's precedents in cases of less than exhaustive investigation, we see that Burger is the closest precedent.

The present case is a perfect example of the kind of case in which Congress intended to preclude federal court interference with the state court decision. The state court recognized the correct precedents and applied them reasonably to the facts of the case. Not everyone will agree with the outcome, but that is the nature of legal decision. To say that the state court decision is unreasonable would itself be unreasonable. Congress has forbidden the federal courts to overturn such a judgment on habeas corpus. See Woodford v. Visciotti, 537 U. S. __, 154 L. Ed. 2d 279, 288, 123 S. Ct. 357, 361 (2002) (per curiam).

CONCLUSION

The decision of the United States Court of Appeals for the Fourth Circuit should be affirmed.

February, 2003

Respectfully submitted,

Kent S. Scheidegger
Counsel of Record
Kymberlee C. Stapleton

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3. Actually, the last part of this statement is erroneous. There is no such category as "borderline mentally retarded." Defendant's IQ score of 79, see J. A. 349, precludes a diagnosis of retardation. He may qualify for a diagnosis of Borderline Intellectual Functioning, but not retardation. See American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders 45 (4th ed. 1994) (ceiling is 70, but test score can be up to 75 due to measurement error).

4. Status of accomplice versus actual killer was not among the factors surveyed. See id., at 1555, 1559.

5. The last ABA brief in support of a prosecutor that amicus CJLF has been able to find was 15 years ago in Morrison v. Olson, 487 U. S. 654 (1988), and even that one was in an unusual case with heavy political overtones.

6. The Teague exceptions are obviously inapplicable, as such a rule would neither legalize murder nor have "the primacy and centrality of the rule adopted in Gideon . . . ." Saffle v. Parks, 494 U. S. 484, 495 (1990).