Thursday, December 18, 2008

Boggs: Not ineffective to investigate childhood abuse because the jury would've hung 'em anyways

I do not claim to be an expert in habeas law (although Sumnter's presentation this fall in Nashville definitely taught me a lot more than I knew before), but the decision today in West v. Bell seems to fly in the face of logic. Because this is a 39 page opinion (in the Sixth's new, easier to read format) in a death penalty case, I'm just going to write a quick note and let you explore further if it interests you. The defendant was charged with murder. In the majority, Boggs and Norris found that it was not ineffective assistance of counsel for defense attorneys to fail to investigate allegations of early childhood abuse for presentation in the mitigation phase, even though a) the defendant's sister had informed them of the abuse, b) the defendant had been born in a mental institution, and c) the defendant asserted that he had no childhood memories before the age of 10.

In a well reasoned dissent (although she concurs in the majorities findings regarding conviction related evidence), Judge Moore disputes the legal analysis employed by the majority, stating that it failed to consider the ineffective assistance claim in light of Wiggins v. State, 539 U.S. 510 (2003) and Rompilla v. Beard, 545 U.S. 374 (2005). The essence of her dissent is that "West's counsel ignored these key pieces of evidence that would have led a reasonable attorney to investigate further. Thus I conclude that West's counsel was deficient."

Apparently under Boggs and Norris' view, while another attorney may have investigated further, without a showing that the defendant was prejudiced by this failure to investigate, the defendant is not eligible for relief. While the odds are against it, I wish that this opinion would join the growing list of other Bell cases before the Supremes.