Wiggins v. Smith: The Ineffective Assistance of Counsel Standard Applied Twenty Years After Strickland

Georgetown Journal of Legal Ethics, The, Summer 2004 by Gable, Elizabeth, Green, Tyler

Throughout Wiggins' appeals process, little or no evidence of this history was presented, despite the defense attorney's contention that he was aware of sexual and other abuse in Wiggins' past. During his opening remarks at sentencing, counsel told the jury that they would "hear that Kevin Wiggins has had a difficult life."59 However, no evidence was presented to show that counsel actually knew the extent of his difficult life, and counsel never presented any evidence of this background.60 Counsel performed only a cursory investigation into Wiggins' history. This consisted of a one-page report from a psychologist ("PSI") which determined Wiggins had a miserable childhood and a low IQ.61 Counsel also had a report from the Department of Social Services ("DSS") that documented the various homes he had stayed in while in foster care.62 Facts in these two reports were all counsel discovered in its investigation, despite the fact that funds were available to retain a forensic social worker in order to further investigate facts about Wiggins' background.63

Prior to this case reaching the Supreme Court, the Fourth Circuit Court of Appeals held that the decision not to fully investigate Wiggins' past was a reasonable decision because despite not choosing to actually investigate and use mitigating evidence, counsel was aware that the option was available to investigate and use such evidence.64 The appeals court reasoned that once a lawyer discovered that more information was available, the lawyer had enough information to make a strategic choice.65 The Fourth Circuit upheld the Maryland Court of Appeals decision that actually obtaining the information was not necessary, as long as the lawyer knew it existed.66 The Supreme Court rejected this course of analysis, however, noting "Strickland does not establish that a cursory investigation automatically justifies a tactical decision with respect to sentencing strategy."67 The important factor to examine, according to the Court, is not whether counsel is aware that mitigating facts are accessible, but whether counsel's investigation into those facts was reasonable.68 In this case, counsel abandoned their investigation at an unreasonable time, making it impossible for them to make an informed decision.69

The Supreme Court found counsel's decision not to expand their investigation beyond the DSS and PSI reports unreasonable because it "fell short of the professional standards that prevailed in Maryland in 1989."70 The Court also pointed out that counsel fell short of various ABA standards by not completing a more thorough investigation. "The ABA Guidelines provide that investigations into mitigating evidence 'should comprise efforts to discover all reasonably available mitigating evidence.' "71 "Among topics counsel should consider presenting are . . .family and social history."72

In Strickland, a limited investigation into psychological and character evidence was found to be reasonable because counsel could reasonably surmise that that type of evidence would be of little help given the circumstances.73 In this case, had counsel done further investigation, they may have discovered the sexual abuse that was later revealed.74 Because it was not reasonable to limit the investigation into Wiggins' dysfunctional past, the Court determined the representation was ineffective.