Janet Reno's fatal decision

In a separate dissent Judge Rosemary Barkett wrote that to find Chandler received adequate counsel when the attorney admittedly did "nothing to investigate mitigating evidence" was contrary to a Supreme Court ruling that found a defense lawyer in a capital case is "obligate[d] to conduct a thorough investigation of the defendant's background." According to Barkett, "Legally, a lawyer who does absolutely nothing to prepare for the penalty phase, even if he adequately prepares for the guilt phase of trial, is constitutionally ineffective."

And that is the hook Reno needs to grab if she is genuinely concerned about preserving the right to effective counsel. The existing Supreme Court standard is already notoriously weak: The so-called Strickland rule allows lower courts to routinely rule against ineffectiveness claims by arguing that an attorney's incompetence did not decisively prejudice the jury's decision.

Reno knows full well that instances of incompetent counsel in criminal cases are rampant. Nancy Gist, director of Reno's Bureau of Justice Assistance, estimates that "hundreds of thousands" receive ineffective legal counsel every year. "A gross injustice is being done every day across this country with the rights of indigent criminal defendants," Gist told me earlier this year.

The possibility that the standard for effective counsel could be even further undermined is surely sticking in Reno's craw. Reno knows that if she refuses to intervene and the Supreme Court upholds the 11th Circuit, she will have to live with the fact that it will be virtually impossible for any defendant to prove a lawyer was ineffective so long as the lawyer was breathing. If on the other hand, the Supreme Court simply refuses to hear the case, Reno knows the right to counsel will have been seriously undermined in the 11th Circuit jurisdiction, including Alabama, Georgia and her home state of Florida.

Either way, Reno would leave office knowing that the federal courts could end up executing a possibly innocent man at a time when evidence of egregious miscarriages in the application of the death penalty are reported with surprising regularity. And she will have done nothing to stop it.

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