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Court confirms importance of mitigation in sentencing.

Article Excerpt
In Wiggins v. Smith, the U.S. Supreme Court, by a surprising 7-2 vote, struck down the death sentence of a convicted murderer, due to ineffective assistance of counsel in the penalty phase of the trial. (1) Kevin Wiggins was tried before a Maryland judge mad found guilty of murdering the victim and then taking her car, credit cards, and other property. The robbery evidently was the aggravating factor on which the death penalty was based.

After he was convinced, Wiggins elected to have a .jury determine his sentence. His lawyers--Carl Schlaich and Michelle Nethercott, two Baltimore County public defenders--sought to bifurcate the penalty phase to show that Wiggins was not the actual killer or, if that failed, to present evidence of his very bad childhood as a mitigating factor. Although the bifurcation request was denied, Nethercott advanced these two arguments in her opening statement. In the proceedings themselves, however, she and Schlaich introduced no evidence of Wiggins's life history:

Tactical decision

In postconviction proceedings, a forensic social worker testified about evidence of "severe physical and sexual abuse [that the] petitioner suffered at the hands of his mother and ... foster parents." (2) Schlaich testified that he and Nethercott had not hired such an expert or used the child-abuse evidence at sentencing because they had made a tactical decision to "'retry the tactual case' and disput[e] Wiggins's direct responsibility for the murder." (3) The postconviction judge observed that "not to do a social history [of the defendant], at least to see what you have got, to me is absolute error.... I would be flabbergasted if the court of appeals said anything else." (4) Nevertheless the judge, and the court of appeals, denied relief because...

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