The importance of counsel, and the challenges of judging it

As detailed in this Tony Mauro article at law.com, the Supreme Court "appeared sharply divided Tuesday over a Pennsylvania case [Rompilla v. Beard] that could set new minimum standards for effective assistance of counsel in death penalty cases."   Though capital cases always make headlines, I think Dahlia Lithwick basically has it right when she explains in this Slate commentary that Rompilla "isn't all that significant, really, [because it] is just one of thousands of claims about inadequate trial lawyers that capital defendants put forward."

And yet, though the Rompilla case may not be exceptional, any elaboration on the meaning and application of ineffective assistance of counsel regarding sentencing representation is of great import in the wake of Blakely and Booker.  I noted this point last week here in conjunction with the Supreme Court's cert. grant in Halbert v. Michigan, and I believe that these issues have now become even more important in light of the Supreme Court's creation of advisory guidelines through its ruling in Booker.

I have been thinking lately that advisory guidelines for sentencing judges in non-capital cases have a quality similar to the guidelines given to sentencing juries in capital cases.  And we know from experience in capital cases that the quality of defense counsel can have a profound impact on ultimate sentencing outcomes, particularly with respect to the development and presentation of mitigating evidence about the defendant. 

Similarly, I expect that, in the new federal advisory guidelines system, quality of defense counsel will have a profound impact on ultimate sentencing outcomes.  Of course, as I detailed in an article a few years ago, From Lawlessness to Too Much Law? Exploring the Risk of Disparity From Differences in Defense Counsel under Guidelines Sentencing, 87 Iowa Law Review 435 (2002) (abstract here), quality of defense counsel surely has a profound impact on ultimate sentencing outcomes in a mandatory guidelines systems, too.

But the Booker move to advisory guidelines should make even more critical whether and how defense attorneys develop and present mitigating personal evidence about the defendant — evidence that the mandatory federal guidelines largely took off the table.  Indeed, I think the work of defense counsel in presenting mitigating offender information will profoundly impact when and how often advisory guidelines are followed in the federal system.   And, bringing us back to the issue in Rompilla, it will be interesting to see if any courts ultimately deem some federal defense counsel ineffective at sentencing if they do not develop and present mitigating offender information while representing defendants in the new federal sentencing world.