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) detail, success in capital post-conviction proceedings will depend not just on the quality of the legal arguments counsel advance but, probably more critically, on counsel's skill at changing the picture that has previously been presented. The old facts and legal arguments - those which resulted in a conviction and imposition of the ultimate punishment, both affirmed on appeal - are unlikely to motivate a collateral court to make the effort required to stop the momentum the case has already gained in rolling through the legal system. Hence, an appreciable part of the task of post-conviction counsel is to change the overall picture of the case.

The Supplementary Guidelines that are the subject of this issue provide powerful resources for accomplishing this task both in terms of giving guidance to counsel and in terms of describing to funding agencies the work that must be done - as a number of recent court decisions have recognized.

We describe a series of cases in which post-conviction legal claims succeeded because of aggressive re-investigations of the facts that simply obliterated the incomplete and less realistic picture that had been presented at trial. These successes represented the effective execution by collateral counsel of their duties under the ABA Guidelines and Supplementary Guidelines: reviewing de novo the work of prior counsel and the completeness of official files as well as the accuracy of the factual premises underlying the adverse determinations in the client's case to date; re-thinking their prior theories and devising new ones in light of changed circumstances; and seizing openings to reach agreed-upon dispositions.

But lawyers cannot do it alone. They need the unique contributions that come from the non-legal members of fully-resourced defense teams. And they need funds. Only then is it realistic to expect them to assemble an additional supply of factual threads and weave them into a new narrative tapestry.

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