Court-Martial Trial Practice Blog
A number of articles are circulating and the blogosphere is discussing the obligations of Major Hasan’s counsel to do anything and everything to avoid the death penalty as a sentence at his court-martial. Here is an interesting item, not that it’s going to be relevant to the Fort Hood case involving Major Hasan, but as an example of how closely IAC is looked at in a death penalty case.
Karen Franklin first notes that:
Mitigation usually focuses on defendant, not victim
Typically, it is defense attorneys’ failure to present evidence of a defendant’s good character that is grounds for reversible error under Strickland. In fact, just this week the U.S. Supreme Court in Porter v. McCullum unanimously reversed a death verdict because the defense attorney failed to present evidence of military heroism during the Korean War, as well as other potentially mitigating facts such as post-war adjustment problems, childhood victimization, a brain abnormality, inadequate schooling, and limited literacy.
But the point of her comment is that one of two co-accused was sentenced to death and the other was sentenced to life. The difference was that the defense in the second case was able to tarnish the reputation of the deceased. Again, I’m not saying that’s the approach Major Hasan’s counsel should take. If they did I think that would be IAC, to attack the victims in this case. The point is to illustrate how difficult it can be defending death penalty cases and how much something apparently small or minor can impact the ultimate sentence.