A Deadly Dilemma: Choices by Attorneys Representing “Innocent” Capital Defendants

A lawyer who represents a capital defendant with a strong innocence claim must allocate her resources between the separate guilt and penalty phases of the capital case. Expending resources in preparation for a penalty trial may result in less attention to securing the acquittal on the capital charge at the guilt trial that would make the penalty phase moot. But focusing primarily on proving the defendant’s innocence at the guilt trial means less preparation in the case of a guilty verdict. Once a defendant is convicted of a capital offense, a lawyer must also make strategic decisions about the penalty phase. By focusing primarily on reasserting the defendant’s claim of innocence, she can seek to convince the jury that they should spare the defendant because of their lingering doubt as to his guilt. Alternately, she can accept the jury’s verdict at the guilt stage and focus primarily on introducing mitigating evidence that will explain the defendant’s background to the jury. In dealing with these critical strategic choices, what should the lawyer do? In Wiggins v. Smith, the Court held a capital defendant’s attorney’s decision to focus solely on reasserting the defendant’s claim of innocence at the penalty trial to be ineffective assistance of counsel. This decision demonstrated that capital defendants’ attorneys’ decisions to focus primarily or exclusively on reasserting defendants’ claims of innocence at the penalty stages of capital trials will not automatically be viewed as reasonable strategic choices. As I will discuss below, the attorneys in Wiggins made some unusually questionable decisions, making it difficult to determine how to apply the Court’s holding to other fact patterns. To consider issues that arise more frequently, it is useful to consider Ronnie Chandler’s trial for capital murder. Although Chandler’s case is not necessarily typical, the problems presented for Chandler’s attorney in that case exemplify some of the problems likely to be encountered by an attorney representing a capital defendant with a strong claim of innocence.