Cornell Law Library Scholarship@Cornell Law: A Digital Repository Cornell Law Faculty Publications Faculty Scholarship 10-1-2009 Strategery's Refuge Christopher W. Seeds Adjunct Professor, Cornell Law School,
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[email protected]. 0091-4169/09/9904-0987 THE JOURNAL OF CRIMINAL LAW & CRIMINOLOGY Vol. 99, No. 4 Copyright © 2009 by Northwestern University, School of Law Printed in U.S.A. STRATEGERY’S REFUGE CHRISTOPHER SEEDS∗ Strategic decisions are entitled to deference under Strickland only if they were made on the basis of reasonable professional judgment after diligent investigation of the pertinent facts. Anything less than that is “strategery,” not “strategy.” —Stephen F. Smith1 [I]t falls most importantly to the trial attorney, as the composer . to minimize dissonance and enhance harmony. —Scott. E. Sundby2 By popular account, the Supreme Court’s recent decisions on effective assistance of counsel in capital sentencing—aggressive critiques of counsel’s failure to investigate and present mitigating evidence—initiate an era of improved oversight of the quality of legal representation in death penalty cases.