Opinion: Set standards for capital cases

If defendants in capital cases were always provided with effective attorneys during their initial trials, a substantial amount of postconviction legal wrangling could be avoided. The years spent appealing death sentences often focus on the paltry and faulty defense put on by the accused's lawyer. But the question of what is constitutionally required for an adequate defense remains murky.

In a case currently before the U.S. Supreme Court, the justices have the opportunity to more clearly define the standards of representation that must be met during a capital trial's sentencing phase. In establishing constitutional minimums, the court should rely on the guidelines on death penalty representation promulgated by the American Bar Association. These guidelines reflect established professional norms. They essentially say that when the ultimate penalty is involved, no slipshod lawyering or half-measures should be tolerated.

The court is grappling with this issue in the appeal of Kevin Wiggins, who was sentenced to death in 1988 for the murder and robbery of a Maryland woman. Wiggins was brutally abused as a child in a way so horrible he bears the scars today. When he was very young, his natural mother used stove burners as a tool of discipline. Later, while in foster care, he was sexually assaulted. These details are typical of the kind of evidence an attorney would provide the jury during the sentencing phase of a death penalty case in order to bring some humanity to the defendant. But Wiggins' lawyer didn't bother.

In his appeals, Wiggins has argued that his attorney's failure to bring up the past abuse rendered the defense below the minimum standards of performance guaranteed by the Sixth Amendment. However, the 4th U.S. Circuit Court of Appeals rejected this argument because Wiggins' attorney knew about the child abuse but affirmatively decided to keep it from the jury's attention as a trial tactic -- a decision the court found unreviewable. The U.S. Supreme Court heard oral arguments in Wiggins' case on Monday.

Expressions of concern over the quality of lawyering in Wiggins' case have come from some unlikely sources. Although the Justice Department entered the case on Maryland's side, nine current and former prosecutors, including former Attorney General Janet Reno, filed a brief for Wiggins urging the justices to require reasonably high standards of professionalism as a way to protect the integrity of the system.

The American Bar Association also weighed in, suggesting that an attorney who fails to investigate and present all possible mitigation factors is not doing a minimally adequate job.

The kind of abuse Wiggins suffered in childhood presents a powerful case for mitigation. There is a very good chance that had this aspect of Wiggins' history been explored he would not be on death row today. To allow a lawyer to ignore this type of evidence is to sanction an incomplete defense -- a standard that should not be acceptable in any criminal case and particularly not one involving the death penalty.

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