The Fourth Circuit\u27s Doube-Edged Sword : Eviscerating the Right to Present Mitigating Evidence and Beheading the Right to the Assistance of Counsel

Even before the sea change of Gideon v. Wainwright, the Supreme Court recognized not only an indigent’s right to the assistance of counsel in capital cases, but also his right to the effective assistance of counsel in capital cases. Since those auspicious beginnings, the Court has dramatically broadened the right to present mitigating evidence in the sentencing phase of a capital trial, thereby increasing the need for the guiding hand of counsel in capital sentencing. Thus, it is particularly tragic that the Fourth Circuit’s swiftly evolving approach to the prejudice prong of the ineffective assistance of counsel standard precludes capital defendants from winning ineffective assistance of counsel claims in the very cases where informed and effective assistance would have been most likely to have made a difference. According to the Fourth Circuit, all psychologically based mitigating evidence is a “two-edged sword,” because “although ‘evidence of a defendant’s mental impairment may diminish his blameworthiness for his crime,’ it also may ‘indicate that there is a probability that he will be dangerous in the future.” Thus for habeas petitioners in the Fourth Circuit, the possibility, however remote, that a jury would focus on dangerousness rather than culpability precludes ever winning an ineffective assistance of counsel based upon the failure to present psychologically-based mitigating evidence, no matter how compelling the neglected evidence is, or how derelict counsel was in failing to present that evidence. As this Article will demonstrate, the double-edged sword doctrine is wrong-headed in several respects. This Article hopes to persuade the reader that despite its newness, it is a doctrine already ripe for overruling—or reversal, if necessary. Part I briefly describes the capital defendant’s right to have available mitigating evidence presented to the sentencing body; the real dimensions of this right can properly be understood only by considering both the breadth of the abstract right to present mitigating evidence and the limitations imposed by the interaction of that right with the ineffective assistance of counsel doctrine. Part II describes how the Fourth Circuit’s double-edged sword doctrine departs from established doctrine and diminishes established rights. Part III presents the conceptual and empirical fallacies of the Fourth Circuit’s approach