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Strategery's Refuge, Christopher W. Seeds

Cornell Law Faculty Publications

By popular account, the Supreme Court’s recent decisions on effective assistance of counsel in capital sentencing—aggressive critiques of counsel’s failure to investigate and present mitigating evidence—initiate an era of improved oversight of the quality of legal representation in death penalty cases. One would expect the new and improved jurisprudence to curb post hoc efforts by trial counsel to disguise incomplete trial preparation as a tactical decision, a practice that has long undercut the Strickland doctrine. But the shelters for post hoc rationalizations—the refuges for “strategery”—remain. Surveying decisions of the federal courts of appeals since the turn of the century, this …