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State v. Bondurant3/20/1998
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received prejudicial ineffective assistance of counsel. The court noted that, after a guilty plea and in preparation for sentencing, defense counsel spoke with the petitioner's wife and mother but "did not otherwise seek out character witnesses," nor "request a psychiatric examination," nor "present and hence look further for evidence concerning respondent's character and emotional state." Strickland, 466 U.S. at 673, 104 S. Ct. at 2057. The court promulgated its well-known, two-pronged test for assessing claims of ineffective assistance of counsel, applicable in a capital sentencing proceeding as much as at trial, whereby the defendant must show (1) that counsel failed to perform reasonably under the circumstances, Strickland, 466 U.S. at 687-688, 104 S. Ct. at 2064-2065, and (2) that the deficient performance prejudiced the defendant. Strickland, 466 U.S. at 687, 104 S. Ct. at 2064.
The scrutiny of counsel's performance must be "highly deferential," and the reviewing court must refrain from concluding "that a particular act or omission of counsel was unreasonable" merely because the strategy employed was unsuccessful. Strickland, 466 U.S. at 689, 104 S. Ct. at 2065. "A fair assessment," the court said, entails making every effort to "eliminate the distorting effects of hindsight" and evaluating the "conduct from counsel's perspective at the time." Id. The court promulgated a "strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance...." Id. The court added:
trategic choices made after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable; and strategic choices made after less than complete investigation are reasonable precisely to the extent that reasonable professional judgments support the limitations on investigation. In other words, counsel has a duty to make reasonable investigations or to make a reasonable decision that makes particular investigation unnecessary.
In any ineffectiveness case, a particular decision not to investigate must be directly assessed for reasonableness in all the circumstances, applying a heavy measure of deference to counsel's judgments.
Strickland, 466 U.S. at 690-991, 104 S. Ct. at 2066. The court acknowledged that "inquiry into counsel's conversations with the defendant may be critical to a proper assessment of counsel's investigation decisions ...." Strickland, 466 U.S. at 691, 104 S. Ct. at 2066.
With respect to the prejudice prong of ineffective assistance of counsel, the court said showing that "errors had some conceivable effect on the outcome of the proceeding" is insufficient. Strickland, 466 U.S. at 693, 104 S. Ct. at 2067. Rather, the defendant must show there is a "reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." Strickland, 466 U.S. at 694, 104 S. Ct. at 2068. In assessing the claim of prejudice, the "court should presume, absent challenge to the judgment on grounds of evidentiary insufficiency, that the Judge or jury acted according to law." Id. The reviewing court must consider the "totality of the evidence before the judge or jury" and should take into account the relative strength or weakness of the evidence supporting the verdict or Conclusion. Strickland, 466 U.S. at 695, 104 S. Ct. at 2069.
In Strickland, the court held both that Strickland's counsel's performance "cannot be found to be unreasonable" and, even if not reasonable, that Strickland "suffered insufficient prejudice to warrant setting aside his death sentence.
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