546
Scalia, J., dissenting
was aware of all this potential mitigating evidence, he chose not to present it to the jury for a strategic reason—namely, that it would conflict with his efforts to persuade the jury that Wiggins was not a " 'principal' " in Mrs. Lacs's murder (i. e., that he did not kill Lacs by his own hand). Id., at 504-505.
There are only two possible responses to this testimony that might salvage Wiggins' ineffective-assistance claim. The first would be to declare that Schlaich had an inescapable duty to hire a social worker to construct a so-called "social history" report, regardless of Schlaich's pre-existing knowledge of Wiggins' background. Petitioner makes this suggestion, see Brief for Petitioner 32, n. 8 (asserting that it was " 'a normative standard' " at the time of Wiggins' case for capital defense lawyers in Maryland to obtain a social history); and the Court flirts with accepting it, see ante, at 524 ("[P]rofessional standards that prevailed in Maryland . . . at the time of Wiggins' trial" included, for defense of capital cases, "the preparation of a social history report"); ibid. (citing ABA Guidelines for the Appointment and Performance of Counsel in Death Penalty Cases 11.8.6, p. 133 (1989) (hereinafter ABA Guidelines), which says that counsel should make efforts " 'to discover all reasonably available mitigating evidence' " (emphasis added by the Court)). To think that the requirement of a "social history" was part of "clearly established Federal law" (which is what § 2254(d) requires) when the events here occurred would be absurd. Nothing in our clearly established precedents requires counsel to retain a social worker when he is already largely aware of his client's background. To the contrary, Strickland emphasizes that "[t]here are countless ways to provide effective assistance in any given case," 466 U. S., at 689, and further states that "[p]revailing norms of practice as reflected in American Bar Association standards and the like . . . are
for finding that he was without knowledge of anything in the "social history" report.
Page: Index Previous 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 NextLast modified: October 4, 2007