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Mitigation Backfire

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Capital habeas lawyers regularly denigrate trial counsel for not introducing some item of marginally mitigating evidence or other.  But more is not always better.  Sometimes the evidence can backfire.  Thomas Sheeran of AP reports from Cleveland:

Marine veteran Nolan Coleman testified Wednesday at the sentencing phase of the trial of 51-year-old Anthony Sowell (SOH'-wehl). The jury must decide whether to recommend death or life in prison without parole for Sowell, who killed 11 women.

Coleman testified to highlight Sowell's military service for jurors when they decide whether to spare his life. Coleman testified that a boot camp promotion like Sowell's would mean he was a top recruit.

But under cross-examination, Coleman said Marine training would include how to kill or immobilize with the hands, including pressure points and choking. Most of Sowell's victims were strangled.

If trial counsel had not put Coleman on the stand, habeas counsel would have claimed ineffective assistance for not introducing mitigating evidence.  Now that they did put him on and it backfired, you can bet your bottom dollar that (if Sowell is sentenced to death) they will claim ineffective assistance for opening the door to the backfire evidence.

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This strategy is commonplace where trial defense counsel avoid mental health mitigation evidence to prevent the jury from learning about, for example, the defendant's lifetime of predatory violence and serial incarcerations. When the jury issues a death sentence anyway, the capital habeas lawyers will wax with indignation about how trial defense counsel, through ignorance and laziness, sold out the pitiful but noble defendant. On the flip side, where trial defense counsel present mental health mitigation evidence, where the psychologist spins past predatory violence and serial incarcerations as diagnostic of, e.g. "brain damage," but the jury doesn't buy it, guess about what the capital habeas lawyers will wax with indignation?

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