February 27, 2020

ABA asks U.S. Supreme Court to confirm standard for effective counsel in capital cases

CHICAGO, Feb. 27, 2020 — The American Bar Association filed an amicus brief today with the
U.S. Supreme Court, asking the justices to grant certiorari in a case of an Arkansas man challenging the way lower courts assessed effective counsel in the punishment phase of his death penalty trial.

At issue is whether trial counsel for Timothy Wayne Kemp, who was convicted in Arkansas of four counts of murder and sentenced to death, 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. The trial judge and the U.S. Court of Appeals for the Eighth Circuit both 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.

The brief cited 1989 ABA Guidelines for the Appointment of Performance Counsel in Death Penalty Cases in arguing that the lower courts did not meaningfully apply the “prevailing professional norms” standard that governs this case. The brief pointed to the U.S. Supreme Court decision in Strickland v. Washington in 1984, saying that under the U.S. Constitution’s Sixth Amendment right to counsel the appropriate standard to assess ineffectiveness requires both that the performance of the defense attorney was objectively deficient, and that 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.”

“The (Supreme) Court should grant the petition to restore the ‘prevailing professional norms’ analysis to its proper place in the Sixth Amendment framework and to reaffirm that courts should look to available evidence of prevailing professional norms to assess counsel’s performance, departing from those norms only when there is a reason to do so,” the ABA brief said.

“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 ABA brief said.

The amicus brief in Timothy Wayne Kemp v. Dexter Payne, Director, Arkansas Department of Corrections can be found here. The ABA was represented on the amicus brief by the law firm of Baker Hostetler LLP.

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