A Deadly Dilemma: Strategic Choices by Attorneys Representing "Innocent" Capital Defendants


Welsh S. White


Final draft was published in the Michigan Law Review, Vol. 102, No. 8 (August 2004), pp. 2001 - 2064.


In this Article, I will contrast the choices of defense attorneys with wide experience in capital cases with those made by defense attorneys who lack such experience, and assess Wiggins v. Smith's possible impact on the question of whether the latter group's choices constitute deficient performance under the first prong of the Strickland test. Broadly stated, my thesis is that in representing capital defendants with a strong claim of innocence, certain axioms that govern the practices of experienced capital-defense attorneys should be viewed as professional norms, and, in most instances, a capital-defense attorney's failure to comply with these norms should constitute deficient performance within the meaning of Strickland.


Criminal Law | Criminal Procedure

Date of this Version

September 2003

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