Hofstra Law Review


This article appears in the Hofstra Law Review symposium issue on the Supplementary Guidelines for the Mitigation Function of Defense Teams in Death Penalty cases.

As the ABA's Guidelines for the Appointment and Performance of Defense Counsel in Death Penalty Cases reprinted in 31 Hofstra L. Rev. 913 (2003) and the Supplementary Guidelines that are the subject of this issue both emphasize, capital defense counsel must select appropriate non-legal team members and provide them with strategic direction. It is simply ineffective assistance for counsel to permit a mental health assessment of the client to occur before having made a reasoned decision about the purpose of the examination and having provided theexaminer with the data necessary to reach a professionally competent conclusion respecting the question presented. This process must then be sustained. As the expert requests more data or the team independently unearths facts or records relevant to the expert's conclusion, thenew information must be incorporated effectively into the defense presentation. Only then will defense counsel be equipped to present an effective case in mitigation and defend it against attacks from the prosecution.

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