79. If the court finds a reasonable probability that the mitigating evidence, if presented, would have affected the jury's sentence, should the court grant the petition?

Assigned counsel for a capital defendant had heard that his client had an unsavory background and a highly dysfunctional childhood. He was reluctant to delve into the details for fear that they might reflect poorly on his client, and he decided not to investigate. After his client was convicted, counsel presented a penalty phase defense that repeated the denials of the liability phase. The jury returned a death sentence. After exhausting state remedies, the defendant filed a post-conviction petition, arguing that his trial counsel rendered ineffective assistance of counsel by failing to investigate and present mitigating evidence of his sordid upbringing.

No, because the decision not to probe into the defendant’s background was part of the defense counsel’s trial strategy
No, because defense counsel is required to adhere only to an objective standard of reasonableness in representing a criminal defendant in the penalty phase of a capital murder case
Yes, because defense counsel’s failure to investigate a defendant’s life history for mitigating evidence in the penalty phase of a capital murder trial constitutes ineffective assistance of counsel
Yes, because defense counsel is required to present any known mitigating factors in the penalty phase of a capital murder case

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C is correct. To establish a claim of ineffective assistance of counsel, a defendant must show two things: (1) that defense counsel's performance was deficient and (2) that the deficiency was prejudicial. Strickland v. Washington, 466 U.S. 668 (1984). Defense counsel has a duty to conduct a reasonable investigation to determine whether there are mitigating facts for the penalty phase of a capital case. Wiggins v. Smith, 539 U.S. 510 (2003). In Wiggins, the Court held that defense counsel's inadequate investigation was prejudicial because a reasonable investigation would have revealed details that gave rise to a reasonable probability of a different outcome in sentencing; thus, the defendant had been deprived of the effective assistance of counsel.

Here, as in Wiggins, defense counsel unreasonably chose not to investigate facts that could have been presented in mitigation, and a reasonable investigation would have revealed facts that gave rise to a reasonable probability of a different outcome during sentencing. Therefore, defense counsel's failure was prejudicial, and the court should grant the petition.

A is incorrect. Defense counsel's decisions can be defended as strategic only when based on a reasonably complete investigation. Although counsel does not have to pursue every conceivable line of inquiry, the investigation must be reasonable under the circumstances. Here, counsel's decision not to investigate was clearly unreasonable in light of the defendant's capital murder conviction and the defendant's background, facts about which may have been presented as mitigating evidence during sentencing.

B is incorrect. The fact that defense counsel must adhere to an objective standard of reasonableness is a correct principle of law. Here, however, counsel's failure to investigate was objectively unreasonable under the circumstances.

D is incorrect. The Strickland standard does not require the presentation of all mitigating evidence, or of any particular mitigating evidence. Rather, it requires counsel to engage in a reasonable investigation into mitigating evidence so counsel can then employ a reasonable strategy in presenting such evidence. See Strickland v. Washington, 466 U.S. 668 (1984).

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79. If the court finds a reasonable probability that the mitigating evidence, if presented, would have affected the jury's sentence, should the court grant the petition?

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