ABA Asks Supreme Court to Confirm Standard for Effective Counsel in Capital Cases

The American Bar Association filed an amicus brief Thursday asking the Supreme Court to hear the case of an Arkansas man challenging the way a lower court assessed whether he received effective counsel during the punishment phase of his death penalty trial.

Timothy Wayne Kemp was convicted in Arkansas of four counts of murder and sentenced to death.

At issue is whether his trial counsel was constitutionally ineffective for failing to adequately investigate and present mitigating evidence related to Kemp’s childhood abuse, fetal-alcohol exposure and post-traumatic stress disorder.

Both the trial court and the 8th U.S. Circuit Court of Appeals deemed the investigation of Kemp’s background as sufficient, although both concluded a more complete investigation could have prevented a death sentence from being imposed.

In its brief the ABA cited its own guidelines for the appointment of counsel in death penalty cases, arguing the trial court did not meaningfully apply the “prevailing professional norms” standard that governs this case.

The brief also points to the 1984 Supreme Court decision in Strickland v. Washington, in which the justices held that the Sixth Amendment right to counsel also carried with it a means to assess whether a defense attorney was objectively deficient, and whether there was a reasonable probability that a competent attorney would have led to a different outcome.

The ABA brief said that in recent years courts have “seized on language” in a 2009 Supreme Court decision to avoid conducting a legal and factual analysis of whether counsel’s representation fell short of an objective standard of reasonableness in light of “prevailing professional norms.”

The effect in the Kemp case, the ABA brief argued, was that the lower courts upheld the death sentence even though his counsel’s failure to hire a mitigation investigator or perform a more robust background investigation “fell below relevant benchmarks for reasonable counsel performance.”

“Had this attorney fulfilled his duty to conduct a thorough investigation of Kemp’s background consistent with the Sixth Amendment and prevailing professional norms, the lawyer would have discovered evidence that would have likely saved Kemp from a sentence of death,” the brief said.The case is Timothy Wayne Kemp v. Dexter Payne, Director, Arkansas Department of Corrections.