Death Penalty - Right to Counse - Ninth Circuit Affirms That Courts Must Consider Aggravating Impact of Evidence When Evaluating Claims of Ineffective Assistance of Counsel

Harvard Law Review, May 2013 | Go to article overview

Death Penalty - Right to Counse - Ninth Circuit Affirms That Courts Must Consider Aggravating Impact of Evidence When Evaluating Claims of Ineffective Assistance of Counsel


One of the Constitution's many mechanisms for protecting individual liberty is the Sixth Amendment's guarantee of "the Assistance of Counsel" for those individuals accused of crimes. (1) This guarantee requires more than just any counsel: defendants also have a right to counsel that provides effective assistance. (2) Nearly thirty years ago, in Strickland v. Washington, (3) the Supreme Court developed a standard for evaluating claims of ineffective assistance of counsel: defendants must prove both counsel's deficient performance and resulting prejudice. (4) Though, as many scholars have argued, it is particularly difficult for capital defendants to succeed under this standard, (5) it is not impossible. Recently, in Stankewitz v. Wong, (6) the Ninth Circuit vacated the death sentence of California's longest-serving death row inmate, (7) holding that his lawyer's failure to investigate and present relevant mitigating evidence at sentencing constituted ineffective assistance. The court also affirmed that when evaluating prejudice, it must consider potential aggravating effects of mitigating evidence, thus bringing the circuit in line with controlling ineffective assistance doctrine. But the majority failed to conduct a clear analysis under this standard, giving lower courts little guidance on weighing such aggravating evidence and leaving open the question of what balance of mitigating and aggravating effects produces a "reasonable probability" of a sentence other than death, as required by Strickland. (8)

In 1978, a jury convicted Douglas R. Stankewitz of murder and sentenced him to death. (9) During sentencing, Stankewitz's lawyer offered a limited presentation after overlooking a significant amount of potentially mitigating evidence in Stankewitz's background by declining to investigate his client's life history. (10) After unsuccessful appeals in California state courts, Stankewitz challenged both the guilt and penalty phases of his trial in a federal habeas petition, which the district court denied in its entirety. (11) In 2004, the Ninth Circuit reversed on Stankewitz's penalty-phase claim of ineffective assistance of counsel, (12) finding that were his assertions true, his trial lawyer's failure to investigate Stankewitz's background and present available mitigating evidence "would establish that [Stankewitz] received ineffective assistance at his penalty phase proceeding." (13) The circuit court remanded for an evidentiary hearing on Stankewitz's allegations. (14)

On remand in 2009, the district court expanded the record with thousands of pages of new documents, including reports by probation officers and psychological evaluations. (15) After examining the new record, the court found that "Stankewitz was psychologically and emotionally damaged by his upbringing" (16) and that he "had a very severe substance abuse problem that began at age 10." (17) The court held that counsel had been ineffective and granted Stankewitz habeas relief, vacating his death sentence and ordering the state to resentence him to life without parole or initiate proceedings to retry his sentence. (18)

The Ninth Circuit affirmed. Writing for the panel, Judge Fisher (19) held that the performance of Stankewitz's lawyer qualified as constitutionally ineffective under Strickland, and thus the district court properly granted Stankewitz a writ of habeas corpus. (20) After determining the proper standard of review, (21) Judge Fisher addressed the question of whether Stankewitz's trial counsel was ineffective under the Strickland standard. (22) He rejected the State's argument that counsel's possession of files containing much of the relevant mitigating evidence established the existence of a reasonable investigation. (23) The fact that counsel failed to investigate any of the evidence in the files he inherited from the lawyer who preceded him on Stankewitz's case, despite "tantalizing indications" of useful information, (24) was actually "evidence of--not an excuse for--his deficiency. …

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Death Penalty - Right to Counse - Ninth Circuit Affirms That Courts Must Consider Aggravating Impact of Evidence When Evaluating Claims of Ineffective Assistance of Counsel
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