The disagreements over death penalty litigation continue on the U.S. Court of Appeals for the Sixth Circuit. The latest round comes from the case of Poindexter v. Mitchell, in which a three-judge panel unanimously upheld a capital defendant's claim that he received ineffective assistance of counsel during the sentencing phase, but in the process produced four opinions.

In 1985, Dewaine Poindexter was convicted of two counts of aggravated murder, among other crimes, and sentenced to death. After years of litigation, Poindexter filed a federal habeas claim. Among other things, Poindexter alleged ineffective assistance of counsel during the sentencing phase becase his counsel failed to conduct an adequate investigation of potentially mitigating evidence. On Monday, the Sixth Circuit upheld this claim, vacating Poindexter's death sentence pending a new sentencing proceeding in a unanimous opinion authored by Judge Suhrheinrich.

The disagreement among the judges was not over whether Poindexter should prevail. All three judges on the panel -- Suhrheinrich, Daughtrey, and Boggs -- agreed that existing precedent was clear. They disagreed over whether it was wise -- and how existing precedents might influence strategic choices made by defense attorneys in capital cases.

Chief Judge Boggs wrote separately "to note the continuing oddity of the circumstances of cases such as this." Boggs continued:

To put it bluntly, it might well appear to a disinterested observer that the most incompetent and ineffective counsel that can be provided to a convicted and death-eligible defendant is a fully-investigated and competent penalty-phase defense under the precedents of the Supreme Court and of our court. That is, the primary means by which a prisoner escapes the affirmance of a death sentence in this circuit has become a finding that "ineffective" counsel was provided at the penalty phase. Thus, if counsel provides fully-effective assistance, and the jury simply does not buy the defense, then the defendant is likely to be executed. However, if counsel provides ineffective assistance, then the prisoner is likely to be spared, certainly for many years, and frequently forever. [citations omitted]

Boggs further noted that whether "mitigating evidence" will reduce the likelihood that a capital defendant receives the death penalty is wholly speculative. The end result is that defense attorneys face a "moral hazard" in which any "sensible attorney" would be likely to reason as follows:

If I make an all-out investigation, and analyze and present to the jury every possible mitigating circumstance, especially of the "troubled childhood" variety, it is my professional judgment that I may thereby increase the probability of this extremely repellant client escaping the death penalty from 10% to 12%. On the other hand, if I present reasonably available evidence that I think has as good a chance as any other in securing the slim chance of mercy from the jury, I will have a 50-99% chance of overturning the extremely likely death penalty judgment 10-15 years down the road. I will thus have secured many additional years of life for the client, and he may very likely avoid capital punishment altogether.

Boggs made clear that he was not accusing the attorneys in this (or any other) case of making such a judgment, "consciously or unconsciously." Nonetheless, he noted, "our jurisprudence has made such a line of reasoning virtually inevitable for any defense attorney."

Judge Daughtrey took exception to Cheif Judge Boggs's concurrence, so she penned one of her own "in order to express my dismay at Judge Boggs's unjustified attack directly on both the cpiatal defense bar and indirectly on the members of this court." Daughtrey continued:

For the chief judge of a federal appellate court to state that it is "virtually inevitable" that "any mildly-sentient defense attorney" would consider playing the equivalent of Russian roulette with the life of a client is truly disturbing. Such a comment is an affront to the dedication of the women and men who struggle tirelessly to uphold their ethical duty to investigate fully and present professionally all viable defenses available to their clients. It also silently accuses the judges on this court of complicity in the alleged fraud by countenancing the tactics outlined.

According to Dughtrey, if there are problems with finality in death penalty litigationk it is more likely due to the fact that "those lawyers representing the absolute pariahs of society are frequently hamstrung by a critical lack of relevant experience, an obvious lack of time and resources, or both."

Not to be left out, Judge Suhrheinrich also wrote his own brief concurrence, though only to agree with Chief Judge Boggs.

I agree with Judge boggs. I think Judge Boggs accurately points out the difficulties with the current legal doctrine concerning ineffective assistance of counsel in death penalty cases at the penalty phase. I do not share Judge Daughtrey's views of defense counsel in these types of case as my experiences have been different. [citations omitted]

This is not certainly not the last episode of Sixth Circuit dissension in death penalty cases, so stay tuned for the next chapter.