Death Trials as Games

"Touch move" is a central rule of tournament chess. You intentionally touch a piece, you must move it (assuming the piece can be legally moved), even if you realize you could have made a much better move. Most games have similar rules, reflecting a belief that strategy is an important component to determining winners and losers.

The Supreme Court's recent decision in Rompilla v. Beard highlights how similar death trials are becoming to games of strategy. The issue was whether two public defenders were constitutionally ineffective because they did not find evidence concerning the defendant's mental condition and history of abuse that might have been a mitigating factor at his trial. A 5-4 majority found ineffective assistance. As an opponent of the death penalty, this is good news. But I have to confess there is much to Justice Kennedy's dissenting opinion that this was not ineffective assistance. I've certainly seen courts let much worse go by.

The more interesting political and constitutional question is why we should care very much about the ineffective assistance question when even the dissent admits that a different investigation would have turned up "useful information." So what if it turns out that the reason counsel failed to turn up mitigating evidence was a reasonable use of scarce time and resources rather than a clear legal mistake. I've lost chess games because I made a mistake an intentionally touched the wrong piece. Do we also execute people because their counsel made a reasonable decision that in hindsight turns out to be a mistake.