Steven K. Erickson; J. Richard Ciccone

Editor:

We welcome the opportunity to respond to Dr. Mark S. Silver’s letter.

We do not agree with Dr. Silver’s claim that the Court in the Wiggins case mandated reports by “forensic social workers.” Nothing in the opinion of the Court stated that forensic reports must be completed in death penalty cases or that these reports must be completed by social workers. If the Court had decided to embark on such a stringent and novel standard, it would have stated so explicitly.

The Court, citing the American Bar Association’s guidelines for representation in death penalty cases, stated that “investigations into mitigating evidence ‘should comprise efforts to discover all reasonably available mitigating evidence and evidence to rebut any aggravating evidence that may be introduced by the prosecutor’” (Wiggins at 524, internal citations omitted, emphasis in the original). The Court, noting that defense counsel “put on a half-hearted mitigation case” (Wiggins at 520), held that counsel’s actions were defective under Strickland v. Washington (466 U.S. 688)—that is, ineffective assistance of counsel. Thus, the Court held that counsel has an obligation to investigate mitigating factors in death penalty cases, but it did not set forth a bright-line rule as to how these investigations should occur or who should perform them.

Furthermore, we find nothing in the Court’s opinion that mandates a report from a social worker. Contrary to Dr. Silver’s contention, psychiatrists and psychologists are also trained to gather, consider, and testify about a defendant’s “biopsychosocial history.” In fact, the biopsychosocial model was developed here at the University of Rochester by George Engel, himself a physician.1

In addition, we do not agree with Dr. Silver’s contention that Wiggins applies to non-death penalty cases. In our view, if the Court had adopted such an expansive rule, it would have explicitly stated so, given the significant implications, logistically and financially, that such a sweeping precedent would entail for the criminal justice system.