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INTEREST OF AMICUS CURIAE

The Criminal Justice Legal Foundation (CJLF) ⁽¹⁾ is a non-profit California corporation organized to participate in litigation relating to the criminal justice system as it affects the public interest. CJLF seeks to bring the due process protection of the accused into balance with the rights of the victim and of society to rapid, efficient, and reliable determination of guilt and swift execution of punishment.

Effective assistance of counsel is essential to the proper functioning of our adversarial system of justice, and genuine cases of ineffective assistance need to be redressed. However, bogus claims of ineffective assistance are now pandemic in capital litigation. An ineffective assistance claim is now reflexively made in nearly every capital habeas case, regardless of the actual quality of representation. These groundless claims are a major factor in the excessive delay in enforcing capital punishment.

Even worse than delay, however, is the appalling frequency with which bogus claims are actually granted. California effectively has no death penalty because of the Ninth Circuit's practice of granting habeas relief to capital defendants who were, in fact, well represented.

Congress took strong action to correct this abuse by enacting the Antiterrorism and Effective Death Penalty Act of 1996, specifically in 28 U. S. C. §2254(d)(1). However, that landmark reform is being routinely ignored. InWoodford v. Visciotti, 537 U. S. __, 154 L. Ed. 2d 279, 123 S. Ct. 357 (2002), the Ninth Circuit's disregard of the statute was so blatant as to warrant unanimous summary reversal by this Court, but a great many other such cases go uncorrected.

The present case is one in which the state court faithfully applied this Court's precedents, and the federal court correctly respected the state court's "primary responsibility . . . for these judgments." Id., 154 L. Ed. 2d, at 288, 123 S. Ct., at 361. To accept the petitioner's position, this Court would have to change the standard on what is effective assistance, repudiate its holding in Burger v. Kemp, 483 U. S. 776, 794 (1987), and do so retroactively twelve years after the case became "final" on direct appeal.

The effective death penalty that Congress sought to achieve can only be achieved if the law is reasonably stable. "Annually improvised . . . jurisprudence," see Morgan v. Illinois, 504 U. S. 719, 751 (1992) (Scalia, J., dissenting), renders impossible a fair, consistent, and effective system of punishing the worst murderers.

The dramatic, retroactive change in the standard for judging effective assistance which petitioner and supporting amici seek in this case would be detrimental to the interests of victims of crime and the law-abiding public that CJLF was formed to protect.

SUMMARY OF FACTS AND CASE

On September 17, 1988, 77-year-old Florence Lacs was found dead in the bathtub of her apartment. Wiggins v. State, 324 Md. 551, 557, 597 A. 2d 1359, 1361 (1991) (Wiggins I). She had been drowned. Id., at 559, 597 A. 2d, at 1363. Mrs. Lacs was lying on her side, half covered with cloudy water, wearing no underpants and her skirt hiked up to her waist. Id., at 557, 597 A. 2d, at 1361. Her apartment was partially ransacked, but there was no evidence of a forced entry. Id., at 557-558, 597 A. 2d, at 1362.

The defendant, Wiggins, was a painter working with a construction crew at the victim's apartment building on September 14 and September 15, 1988. Wiggins v. State, 352 Md. 580, 586, 724 A. 2d 1, 4 (1999) (Wiggins II). On September 15, Wiggins was seen having a brief conversation with the victim near the doorway of her apartment. That same night, Wiggins drove the victim's car to his girlfriend's house. Ibid. He was also in possession of the victim's credit cards and some of her jewelry. 324 Md., at 560-561, 597 A. 2d, at 1363. Wiggins and his girlfriend went on a shopping spree with the victim's credit cards and pawned a ring belonging to the victim.Id., at 561, 597 A. 2d, at 1363.

On September 21, Wiggins was arrested while driving the victim's car. Ibid. After a bench trial, Wiggins was found guilty of first-degree murder, robbery, and theft. Id., at 563, 597 A. 2d, at 1364. Wiggins then elected to have a jury determine his sentence on the murder conviction. Id., at 563, 597 A. 2d, at 1365. The jury concluded beyond a reasonable doubt that he was a principal in the first-degree to the murder of the victim and that death was the appropriate sentence. Id., at 565, 597 A. 2d, at 1365; Wiggins v.Corcoran, 288 F. 3d 629, 635 (CA4 2002). On direct appeal, the Maryland Court of Appeals affirmed the conviction and sentence inWiggins I.

The state then provided extensive post-conviction review. Wiggins was represented by counsel and had a hearing on his claims, including his ineffective assistance of counsel claim. Wiggins claimed it was ineffective for trial counsel not to make out a case in mitigation based on his background at the penalty phase. Wiggins, 288 F. 3d, at 635. The trial court found that defense counsel had made a reasonable tactical decision. The trial court's decision was affirmed on review in Wiggins II.

Wiggins then filed for federal habeas relief. Wiggins v. Corcoran, 164 F. Supp. 2d. 538 (D. Md. 2001). The District Court found that defense counsel did not render effective assistance at sentencing. Id., at 560. On appeal, the Fourth Circuit reversed, finding that defense counsel provided reasonably effective assistance, and the Maryland Court of Appeals' opinion was a reasonable application ofStrickland v. Washington, 466 U. S. 668 (1984). Wigginsv. Corcoran, 288 F. 3d, at 643.

On November 11, 2002, this Court granted Wiggins' petition for certiorari.

SUMMARY OF ARGUMENT

The Sixth Amendment requires effective assistance of counsel. In the context of the penalty phase of a capital case, that includes a reasonable investigation of mitigating circumstances. This Court has consistently rejected rigid rules for determining effectiveness. InBurger v. Kemp, the Court expressly held that a decision to terminate further investigation into "background" mitigation evidence can be reasonable when counsel has made some investigation along that line and makes a strategic decision to focus the defense on a different line.

Amici supporting the defendant claim that the Court of Appeals' decision in this case eliminates the duty to investigate and consider using background mitigation evidence. They misread the decision. The Court of Appeals' decision is a straightforward application of this Court's precedents in Burger and Strickland v. Washington.

The right to effective assistance is not a right to expend unlimited funds. Competent assistance includes making decisions on what to investigate within reasonable constraints on available resources.

The Eighth Amendment requires that the sentencer consider whatever mitigation the defendant proffers, but neither the Eighth Amendment alone nor the Eighth in conjunction with the Sixth requires that counsel proffer everything available.

While Eddings v. Oklahoma requires the jurors to consider the "background" type of mitigation evidence, it does not require them to accept it as mitigating or assign it any particular weight. In practice, this type of evidence is particularly weak. Large majorities of jurors assign it no weight at all. Residual doubt, on the other hand, is the most powerful of all mitigators.

Lawyers must have discretion on which arguments to make and which to leave out. Strategic omissions are not limited to those which directly conflict with the best argument. Weak arguments can hurt the defense case in the juror's minds merely by distracting from the strong ones or by diminishing the defense's credibility.

Lawyers may legitimately decide not to use background evidence if they believe they have a much stronger argument, such as residual doubt. They may competently decide not to conduct an exhaustive background investigation once they know enough about the background and the other mitigation argument to make a decision to go with the other one. That is what counsel did in this case, and their decision was well within the broad latitude allowed byStrickland.

The guidelines put out by the American Bar Association are entitled to no special weight in this Court's deliberations. Regrettably, that organization has forfeited its special place as the voice of the entire profession. In matters of criminal law, the ABA now sides consistently with the defense against the prosecution, making it just one more interest group among many.

Acceptance of defendant's position would require overruling the clear holding of Burger v. Kemp. Both Teague v. Lane and AEDPA preclude doing so in this habeas case. The Maryland Court of Appeals' application of Burger to the facts of this case was eminently reasonable.

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1. This brief was written entirely by counsel for amicus, as listed on the cover, and not by counsel for any party. No outside contributions were made to the preparation or submission of this brief.

Both parties have given written consent to the filing of this brief.