                       RECOMMENDED FOR FULL-TEXT PUBLICATION
                            Pursuant to Sixth Circuit Rule 206
                                   File Name: 09a0147p.06

               UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT
                                 _________________


                                              X
                                               -
 MARK W. WILES,
                                               -
                            Petitioner-Appellant,
                                               -
                                               -
                                                    No. 05-3719
         v.
                                               ,
                                                >
                                               -
                     Respondent-Appellee. -
 MARGARET BAGLEY, Warden,
                                               -
                                              N
                Appeal from the United States District Court
               for the Northern District of Ohio at Cleveland.
               No. 02-00992—Paul R. Matia, District Judge.
                               Argued: December 11, 2008
                           Decided and Filed: April 14, 2009
                Before: MARTIN, SILER and SUTTON, Circuit Judges.

                                   _________________

                                        COUNSEL
ARGUED: John J. Ricotta, LAW OFFICE, Cleveland, Ohio, for Appellant. Adam Michael
Van Ho, OFFICE OF THE OHIO ATTORNEY GENERAL, Cleveland, Ohio, for Appellee.
ON BRIEF: John J. Ricotta, LAW OFFICE, Cleveland, Ohio, Henry J. Hilow, McGINTY,
HILOW & SPELLACY, Cleveland, Ohio, for Appellant. Laurence R. Snyder, OFFICE OF
THE OHIO ATTORNEY GENERAL, Cleveland, Ohio, for Appellee.
     SUTTON, J., delivered the opinion of the court, in which SILER, J., joined.
MARTIN, J. (pp. 10-15), delivered a separate concurring opinion.
                                   _________________

                                        OPINION
                                   _________________

        SUTTON, Circuit Judge. Mark Wiles murdered a fifteen-year-old boy with a
kitchen knife during a botched burglary in 1985. After he waived his right to a jury trial, a
panel of three Ohio judges convicted him of aggravated murder and aggravated burglary,
then sentenced him to death. After exhausting his state-court appeals and post-conviction


                                             1
No. 05-3719         Wiles v. Bagley                                                    Page 2


remedies, Wiles sought a writ of habeas corpus under 28 U.S.C. § 2254, arguing (among
other things) that he was denied the effective assistance of counsel under the Sixth and
Fourteenth Amendments. Because Wiles has not shown that he was prejudiced by his
counsel’s alleged shortcomings, we affirm.

                                              I.

        In 1982, Wiles went to work as a part-time laborer for Charles and Carol Klima on
their horse farm, where they lived with their son Mark. State v. Wiles, 571 N.E.2d 97, 103
(Ohio 1991). One day in early 1983, the family learned that $200 in cash was missing. That
same day, Wiles had reported for work, but he could not be found after the Klimas learned
of the missing cash, and he did not return to collect his paycheck or for that matter return to
work any longer on the farm. Id. at 103–04. In the spring of that year, Wiles began serving
a 4–25 year sentence in an Ohio prison for an unrelated burglary he had committed the
previous year.

        On August 7, 1985, after serving eighteen months of this sentence, Wiles returned
to the Klima farm, entered the unlocked house while the family was gone and began to
search the house for valuables. Wiles, 571 N.E.2d at 104. While he was still in the house,
Mark Klima returned and confronted him. Id. Wiles stabbed the boy 24 times with a kitchen
knife, stole approximately $260 and fled. Id. Carol Klima returned home to find her
unconscious son lying on the floor with a knife buried in his back. Id. Later that day, Mark
Klima died in a hospital emergency room. Id.

        Wiles initially fled from the authorities. Five days after the murder, however, he
turned himself in to the police in Savannah, Georgia, telling them that he was wanted for
murder in Ohio. Id. at 105. After being informed of his rights, he told the police what he
had done and signed a confession admitting that he had killed Klima. Id.

        A state grand jury indicted Wiles for aggravated murder and two counts of
aggravated burglary—one for the 1985 home invasion, one for the 1983 $200 theft. Id. at
105–06. He waived his right to a jury, and a three-judge panel heard his case. Id. at 106–07.
After the guilt phase of the proceedings, the court determined that there was insufficient
evidence that he had committed the 1983 burglary but convicted him on the aggravated-
No. 05-3719          Wiles v. Bagley                                                     Page 3


murder and the other aggravated-burglary count. Id. at 107. After a mitigation hearing, the
court determined that neither Wiles’ youth (he was 22-years old at the time of the murder)
nor his confession outweighed the aggravating circumstances of his crime. Id. at 107–08.
The court imposed a death sentence, and the Ohio Court of Appeals and the Ohio Supreme
Court affirmed his conviction and sentence. Id. at 108, 125; State v. Wiles, No. 1675, 1988
WL 59838, at *10 (Ohio Ct. App. June 3, 1988).

        Wiles filed a state post-conviction petition, which included a claim that his trial
counsel had provided constitutionally inadequate assistance at the mitigation phase of the
trial. The state trial and appellate courts rejected the petition. In rejecting his ineffective-
assistance claim, the court of appeals concluded that Wiles “ha[d] failed to demonstrate
ineffective assistance of his trial counsel at the . . . penalty phase” and that “he [was] unable
to demonstrate with a reasonable probability that the result at trial would have been
different” if his counsel had not made the alleged errors. JA 918. The Ohio Supreme Court
declined review. State v. Wiles, 754 N.E.2d 260, 260 (Ohio 2001).

        In 2002, Wiles filed a petition for a writ of habeas corpus in federal court, raising 36
claims. The district court denied the petition in 2005 and declined to issue a certificate of
appealability on any of the claims. Wiles sought a COA from us, which we granted with
respect to the claim that his attorneys failed him at the penalty phase of his trial.

                                               II.

        To establish ineffective assistance of counsel, a claimant must show two things. He
must establish that his attorneys’ performance was “deficient,” which “requires showing that
[they] made errors so serious that [they were] not functioning as the ‘counsel’ guaranteed . . .
by the Sixth Amendment.” Strickland v. Washington, 466 U.S. 668, 687 (1984). And he
must show that “there is a reasonable probability that, but for counsel’s [failure to
investigate], the result of the [mitigation hearing] would have been different.” Id. at 694.

        Like all claimants seeking federal habeas relief after 1996, Wiles faces another
hurdle: the Antiterrorism and Effective Death Penalty Act of 1996, Pub. L. No. 104-132,
110 Stat. 1214. Under that legislation, we may grant the writ only if the state court of
No. 05-3719           Wiles v. Bagley                                                    Page 4


appeals’ decision “was contrary to, or involved an unreasonable application of, clearly
established federal law.” 28 U.S.C. § 2254(d)(1).

                                                A.

          In maintaining that his trial counsel did not adequately prepare for the mitigation
hearing, Wiles claims that his attorneys failed (1) to uncover abuse in his childhood, (2) to
uncover that he had taken barbiturates before entering the Klimas’ house on the day of the
murder and (3) to investigate a head injury he received twelve days before the murder. Even
if we grant for the sake of argument that these claimed lapses meet the first prong of
Strickland (ineffective assistance), they do not meet its second prong (prejudice). See
Poindexter v. Mitchell, 454 F.3d 564, 572 (6th Cir. 2006).

          Wiles has not shown that “there is a reasonable probability” that, but for this alleged
absence of investigation, “the result” of the mitigation hearing “would have been different.”
Strickland, 466 U.S. at 694. Above all, the new evidence does not “differ[] markedly from
the testimony and evidence the [three-judge panel] in fact considered.” Hill v. Mitchell, 400
F.3d 308, 332 (6th Cir. 2005).

          First, the new family-history evidence about Wiles’ father and mother adds little to
what was introduced at the mitigation hearing. As to his father: Counsel introduced
evidence at the trial showing that his father was “stern,” JA 1037, that he was “less tolerant
with [Wiles] than he was [with] the other[] [children]” and that he viewed Wiles as an
“interference . . . in [the family’s] life” because “[Wiles] was not a planned child,” JA
1302–03. A counselor’s report also described the following incident between Wiles and his
father when Wiles was 17:

          Mark has been high everyday during the past week. Sat. 1-10 his father and
          him got into a fight. His father got rough w/ him. Mark got pushed down
          some steps. Mark[’]s father called the police and had him charged w/
          intoxication. Mark was placed in detention . . . .
JA 981.

          Most of the ostensibly new evidence represents variations on this same theme. For
example: Wiles claims that the court should have heard that his father was emotionally
distant—that he was “not one to touch much,” JA 783; that, after Wiles began serving time
No. 05-3719          Wiles v. Bagley                                                     Page 5


in prison for his first burglary in 1983, his father “washed [his] hands of him and did not visit
him,” JA 744; that his father stated that he “never wanted that bastard anyway,” JA 746; that
he told Wiles that he “would never amount to anything and that he did not want him,” id.;
and that Wiles suffered “emotional[] and physical[] abuse” from his father, JA 747, though
the affidavit to this effect (from his sister Jona) offers no details about any incidents of
physical violence. All of this evidence adds little to the picture that counsel already had
painted of Wiles’ father: a man who did not like Wiles, who resented him as an unwanted
addition to the family and who, on occasion, “got rough” with him, JA 981. This is precisely
the “kind of cumulative evidence that does not show prejudice,” Brooks v. Bagley, 513 F.3d
618, 626 (6th Cir. 2008), because it does not “differ in a substantial way—in strength [or in]
subject matter—from the evidence actually presented at sentencing,” Hill, 400 F.3d at 319.

        Wiles, however, does identify one new piece of evidence that was not covered at the
trial—the allegation that his father was “sexually inappropriate with his sisters.” JA 754.
According to Wiles’ post-conviction psychological expert, Robert Smith, “Wiles reluctantly
disclosed that his father was ‘sexually inappropriate’ with his sisters.” JA 754. New though
this allegation may be, it is not corroborated: Neither Wiles’ father, his sister, nor his mother
mentions any such abuse in their affidavits. Even if we accept the allegation as credible,
moreover, it still amounts to exceedingly weak mitigation evidence, because nothing shows
that Wiles was aware of this abuse at the time of the murder, and there is no evidence that
it caused him any psychological harm beyond what he had already experienced at the hands
of a distant and sometimes abusive father. Confirming the point, Smith does not refer to
these allegations in discussing Wiles’ troubled relationships, his overall diagnostic
impressions of Wiles or his impressions of Wiles’ mental state at the time of the crime.
Absent evidence that Wiles knew of the abuse or even evidence about how it might have
affected his psychological profile, we see no tenable basis on which it could have altered the
three-judge panel’s sentence.

        As to Wiles’ mother: Counsel offered evidence at the mitigation hearing from a
school psychologist who said that his “mother [was] ignoring” and that the family was “not
close.” JA 1037. Wiles claims that his attorneys also should have introduced evidence that
his mother “was quite depressed and cleaned the house all the time for [their] father.” JA
746. The expert witness, Smith, likewise spoke of the mother’s “long-standing history of
No. 05-3719         Wiles v. Bagley                                                     Page 6


depression,” which prompted her to “spen[d] a considerable amount of time sleeping and
withdrawing from the family and others.” JA 755. But this evidence adds little to what the
three-judge panel heard. There is no indication that the depression affected Wiles in any way
beyond causing his mother to “withdraw[]” from the family, id., and a similar theory was put
before the three-judge court when it heard evidence that she “ignor[ed]” him, JA 1037.

        Second, the ostensibly new evidence of drug use suffers from a similar flaw. Wiles
argues that his counsel failed to introduce evidence about his “drug problems, which
escalated after an industrial accident which caused the tragic death of his brother.” Br. at 20.
Yet this evidence, once again, largely duplicates what the judges already heard. Wiles’
attorneys presented ample evidence at the mitigation hearing of Wiles’ history of drug and
alcohol abuse, the death of his brother Randy and the impact these events had on him.

        Here, too, there is an exception. Wiles argues that his prior attorneys should have
discovered—and should have presented to the court—evidence that he ingested “3 or 4
barbiturates shortly before entering the Klima home,” which prevented him from thinking
“clearly” at the time of the offense. Br. at 11–12. Even if we accept this new evidence as
true, even if we accept that his counsel did not know about this fact and even if we overlook
the conspicuous oddity that Wiles himself did not tell his counsel about this background
information, there is no prejudice and indeed the omission of this evidence likely benefited
Wiles. For one thing, this evidence directly contradicts his confession to the crime, in which
he denied consuming drugs on the day of the murder or within the previous twelve days.
The claim therefore was readily impeachable, making it unlikely to change the outcome of
the hearing for that reason alone. See Owens v. Guida, 549 F.3d 399, 411 (6th Cir. 2008).
For another, Wiles’ mitigation strategy emphasized, quite understandably, that he had
confessed truthfully in all respects to the crime, see Wiles, 1988 WL 59838, at *8, but this
evidence would have undercut that mitigation theme. For still another, it is hardly self-
evident that getting high on barbiturates before stabbing someone to death is the kind of
evidence that makes a capital defendant look better in the eyes of a court as opposed to
“mak[ing] him look even worse.” Carter v. Mitchell, 443 F.3d 517, 532 (6th Cir. 2006).
Wiles had little to gain from this new evidence and much to lose by introducing it. He thus
cannot show prejudice by its omission.
No. 05-3719          Wiles v. Bagley                                                     Page 7


        Third, Wiles contends that his counsel failed him by not investigating a head injury
he sustained twelve days before the murder. As Wiles tells it, a man named Joe Kelly
“jumped [him] and hit [him] on the head with a tire iron” when he was leaving a bar,
knocking him unconscious. Br. at 12–13. He arrived at the emergency room with cuts on
his face and with his right eye “swollen shut,” JA 568, and an examination showed that he
had “multiple facial bone [fractures],” id. After doctors cleaned and closed his wounds,
Wiles left the hospital against medical advice, only to return five days later complaining of
“dizziness, somnolence and difficulty walking.” Id.

        Notably absent from the record is any evidence that Wiles was still experiencing
symptoms from his head injury on the day he murdered Mark Klima. Wiles argues only that
investigation by his counsel prior to the mitigation hearing, including “retention of a
neurologist and a follow up CAT SCAN, may have assisted counsel . . . in explaining to the
fact finders a causal . . . connection between the head injury and [his] uncharacteristic violent
behavior.” Br at 13–14. But such “speculation” as to the effects still-further investigation
might have on the outcome of this theory at the mitigation hearing does not by itself establish
prejudice. See Slaughter v. Parker, 450 F.3d 224, 234 (6th Cir. 2006). This claim, too,
necessarily fails. All of these arguments considered, the state court of appeals reasonably
applied Strickland in concluding that Wiles failed to show prejudice from the failure to
present this additional evidence.

                                               B.

        Wiles separately argues that his attorneys did not adequately prepare Dr. Willis
Carpenter Driscoll, a psychologist, for the mitigation hearing: They gave Driscoll too little
time to prepare for the hearing because they hired him a week before the hearing; Driscoll
interviewed Wiles for just two hours and never spoke to any of his family, friends or
coworkers; and Driscoll never reviewed Wiles’ educational records. Driscoll’s inadequate
preparation, according to Wiles, led him to testify in a way that failed to convey a useful
mitigation theory to the three-judge panel. Even if we accept this theory of ineffective
assistance for the sake of argument, Wiles again has failed to show prejudice.

        Driscoll’s inadequate preparation, Wiles urges, caused Driscoll to admit a damning
fact on cross-examination, namely that “one of the many factors” that motivated Wiles to kill
No. 05-3719         Wiles v. Bagley                                                     Page 8


Klima was that the boy was “the only witness” to the burglary. JA 1421. But it is hard to
see how this admission could have affected the death sentence. By this stage in the case, the
three-judge panel already had determined that Wiles killed Klima “for the purpose of
escaping detection, apprehension, trial or punishment for another crime.” Wiles, 571 N.E.2d
at 106. Once the panel found that fact to be true beyond a reasonable doubt, defense counsel
had every reason to accept, rather than challenge, that premise of the guilt determination and
to work with, rather than reargue, the point during the mitigation hearing. A psychologist’s
“admission” of a fact at a mitigation hearing, one already established beyond a reasonable
doubt at the liability hearing, does not establish prejudice.

        Nor has Wiles succeeded in showing that a better-prepared expert would have given
more useful testimony. As an example of what a well-prepared expert would have said, he
offers the affidavit of Robert Smith, who has a Ph.D., a license in clinical psychology and
extensive clinical experience in that field, and who has interviewed Wiles and reviewed the
relevant records in this case. But Smith’s submission, too, adds little to what the court heard
at the hearing.

        Smith opines that “the antisocial behaviors reported by Mr. Wiles are directly related
to his substance dependence” and says that the murder was a “direct result” of Wiles
ingestion of barbiturates. JA 765, 767. As explained, however, linking Wiles’ conduct to
drug abuse was already in front of the panel and linking the crime to the recent consumption
of barbiturates was inconsistent with his confession and with the prevailing theme of his case
for leniency.

        The other explanation Smith offers for the murder was that Wiles had “interpersonal
difficulties,” in particular a poor relationship with his parents and a brother who died shortly
before Wiles began high school. JA 767. But, as mentioned, the three-judge panel heard
considerable testimony regarding Wiles’ difficult family circumstances, including Driscoll’s
opinion that Wiles’ “emotional development ha[d] been arrested at the age of 10 [to] 12”
due, in part, to the “dearth of warmth from his father,” JA 1399, and that Wiles’ desire “to
punish himself” due to an overabundance of guilt led him to kill Klima, JA 1424. In the end,
Wiles has not shown that he was prejudiced by his counsel’s preparation of and reliance on
Driscoll or that the state court of appeals unreasonably concluded otherwise.
No. 05-3719      Wiles v. Bagley             Page 9


                                      III.

      For these reasons, we affirm.
No. 05-3719           Wiles v. Bagley                                                         Page 10


                                  ________________________

                                      CONCURRENCE
                                  ________________________

         BOYCE F. MARTIN, JR., Circuit Judge, concurring. I concur in the panel opinion.
Wiles has not shown that his counsel was unconstitutionally ineffective during the mitigation
phase of his trial.

                                             *       *   *

         Now in my thirtieth year as a judge on this Court, I have had an inside view of our
system of capital punishment almost since the death penalty was reintroduced in the wake
of Furman v. Georgia, 408 U.S. 238 (1972). During that time, judges, lawyers, and elected
officials have expended great time and resources attempting to ensure the fairness,
proportionality, and accuracy that the Constitution demands of our system. But those efforts
have utterly failed. Capital punishment in this country remains “arbitrary, biased, and so
fundamentally flawed at its very core that it is beyond repair.” Moore v. Parker, 425 F.3d
250, 268 (6th Cir. 2005) (Martin, J., dissenting). At the same time, the system’s necessary
emphasis on competent representation, sound trial procedure, and searching post-conviction
review has made it exceedingly expensive to maintain.

         The system’s deep flaws and high costs raise a simple but important question: is the
death penalty worth what it costs us? In my view, this broken system would not justify its
costs even if it saved money, but those who do not agree may want to consider just how
expensive the death penalty really is. Accordingly, I join Justice Stevens in calling for “a
dispassionate, impartial comparison of the enormous costs that death penalty litigation
imposes on society with the benefits that it produces.” Baze v. Rees, ___ U.S. ___, 128 S.Ct.
1520, 1548-49 (2007) (Stevens, J., concurring). Such an evaluation, I believe, is particularly
appropriate at a time when public funds are scarce and our state and federal governments are
                                                 1
having to re-evaluate their fiscal priorities. Make no mistake: the choice to pay for the

         1
          Here, I will focus on the public costs of capital punishment. But it has significant, often
overlooked private costs as well. See, e.g., Thomas P. Sullivan, Efforts to Improve the Illinois Capital
Punishment System: Worth the Cost?, 41 U. RICH. L. REV. 935, 967 (2007) (noting “the psychological and
often the financial injuries inflicted on victims’ families,” upon the defendant’s family, and upon the
defendants themselves); Charles S. Lanier & James R. Acker, Capital Punishment, The Moratorium
Movement, and Empirical Questions: Looking Beyond Innocence, Race, and Bad Lawyering in Death
No. 05-3719            Wiles v. Bagley                                                            Page 11


death penalty is a choice not to pay for other public goods like roads, schools, parks,
public works, emergency services, public transportation, and law enforcement. So we
need to ask whether the death penalty is worth what we are sacrificing to maintain it.

         And, while this is a matter that would benefit from further study,2 the evidence
indicates that, on average, every phase of a capital case is more expensive than in a non-
capital case, and that the lifetime cost of a capital case is substantially more than the cost




Penalty Cases,10 PSYCH. PUB. POL. & L. 577, 603 (2004) (discussing the “host of secondary victims”
affected by capital punishment).
         2
          See, e.g., SUSAN S. EVERINGHAM, RAND CORP., INVESTIGATING THE COSTS OF THE DEATH
PENALTY IN CALIFORNIA (2008) (discussing challenges in assessing the total costs of the death penalty),
available at www.rand.org/pubs/testimonies/CT300/.
         One aspect of this problem that merits further attention is the relationship between the
threat of a capital charge and plea bargain rates. Compare KENT S. SCHEIDEGGER, CRIMINAL
JUSTICE LEGAL FOUNDATION, THE DEATH PENALTY AND PLEA BARGAINING TO LIFE SENTENCES
(2009) (arguing that the availability of the death penalty affects plea bargain rates), available at
www.cjlf.org/papers/wpaper09-01.pdf, with Ilyana Kuziemko, Does the Threat of the Death Penalty Affect
Plea Bargaining in Murder Cases? Evidence from New York’s 1995 Reinstatement of Capital Punishment,
8 AM. L. & ECON. REV. 116 (2006) (concluding that availability of a capital charge affects the terms of plea
bargains but not their frequency).
No. 05-3719            Wiles v. Bagley                                                            Page 12


of incarcerating an inmate for life without parole.3 Surprising as that may seem, the
reason for it is simple: “lawyers are more expensive than prison guards.”4

         To begin, capital cases involve more pre-trial and trial costs than non-capital
cases.5 Capital cases are far less likely to be resolved through plea bargain,6 and they




         3
            For data on the costs of state capital cases, see CALIFORNIA COMMISSION ON THE FAIR
ADMINISTRATION OF JUSTICE, FINAL REPORT 147 (2008) (estimating that a system of life without parole
would save $121.2 million annually); JOHN ROMAN, ET AL., URBAN INSTITUTE, THE COST OF THE DEATH
PENALTY IN MARYLAND 2 (2008) (finding that average lifetime cost of a capital case is $1.9 million more
than the average non-capital case); WASHINGTON STATE BAR ASSOCIATION, FINAL REPORT OF THE DEATH
PENALTY SUBCOMMITTEE OF THE COMMITTEE ON PUBLIC DEFENSE (2006) (finding that the cost of a capital
trial and post-conviction proceedings is $467,000 more than life without parole); MARY E. FORSBERG, NEW
JERSEY POLICY PERSPECTIVE, MONEY FOR NOTHING? THE FINANCIAL COST OF NEW JERSEY’S DEATH
PENALTY (2005) (finding capital punishment created $253 million in additional costs from 1983 to 2005,
or $11 million per year); STATE OF KANSAS, LEGISLATIVE DIVISION OF POST AUDIT, COSTS INCURRED FOR
DEATH PENALTY CASES: A K-GOAL AUDIT OF THE DEPARTMENT OF CORRECTIONS 10 (2003) (estimating
the median cost of a capital case to be $1.2 million through execution—70% more than life without
parole); INDIANA CRIMINAL LAW STUDY COMMISSION, COMMISSION REPORT ON CAPITAL SENTENCING
(2002) (finding death penalty system is 35-38% more costly than one of life without parole); S.V. Date,
The High Price of Killing Killers: Death Penalty Prosecutions Cost Taxpayers Millions Annually, PALM
BEACH POST, Jan. 4, 2000, at 1A (estimating that the death penalty costs Florida an additional $51 million
annually); PHILIP J. COOK & DONNA B. SLAWSON, THE COSTS OF PROCESSING MURDER CASES IN NORTH
CAROLINA 78 (1993) (“The extra cost per execution of prosecuting a case capitally is more than $2.16
million.”); Christy Hoppe, Executions Cost Texas Millions Study Finds It’s Cheaper to Jail Killers for Life,
DALLAS MORNING NEWS, Mar. 8, 1992, at 1A (reporting that the cost of an average capital case was $2.3
million—three times as much as a non-capital case imposing a 40-year sentence); Pamela Manson, Matter
of Life or Death: Capital Punishment Costly Despite Public Perception, It’s Cheaper to Keep Killers in
Prison, ARIZ. REPUBLIC, Aug. 23, 1993, at A1; Stephen Magagnini, Closing Death Row Would Save State
$ 90 Million a Year, SACRAMENTO BEE, Mar. 28, 1988, at A1; Robert Spangenberg & Elizabeth R. Walsh,
Capital Punishment or Life Imprisonment? Some Cost Considerations, 23 LOYOLA L.A. L. REV. 45 (1989);
Margot Garey, Comment, The Cost of Taking a Life: Dollars and Sense of the Death Penalty, 18 U.C.
DAVIS L. REV. 1221 (1985).
           For trial cost data on the federal level, see JON B. GOULD & LISA GREENMAN, JUDICIAL
CONFERENCE COMMITTEE ON DEFENDER SERVICES, UPDATE ON THE COST, QUALITY, AND AVAILABILITY
OF DEFENSE REPRESENTATION IN FEDERAL DEATH PENALTY CASES 24 (2008) (finding the median defense
cost of authorized cases to be $353,185 as opposed to $44,809 in non-authorized cases), available at
www.uscourts.gov/defenderservices/FDPC_Contents.cfm. The report does not address the costs of
prosecution or post-conviction costs.
         4
          U.C. Berkeley Law Professor Franklin Zimring, quoted in Sam Howe Verhovek, Across the
U.S., Executions are Neither Swift Nor Cheap, N.Y. TIMES, February 22, 1995, at A1.
         5
           See, e.g., ROMAN ET AL., supra note 3, at 30 (“The majority (70%) of the cost differential
between a death notice and a non-death notice case occurs during the trial phase. This difference is due
to a greater number of pre-trial motions, longer and more intensive voir dire, longer trials and a greater
amount of general preparation time.”).
         6
         Roughly 95% of state and federal felony cases are resolved through plea bargain. Russell D.
Covey, Fixed Justice: Reforming Plea Bargaining with Plea-Based Ceilings, 82 TUL. L. REV. 1237, 1238
(2008). Most capital cases, on the other hand, proceed to trial. Alex Kozinski & Sean Gallagher, Death:
The Ultimate Run-On Sentence, 46 CASE W. RES. L. REV. 1, 11 (1995) (“80% of capital cases go to trial.”);
GOULD & GREENMAN, supra note 3, at 18 (reporting that 65% of capital cases handled by federal defenders
between 1998 and 2004 went to trial).
No. 05-3719            Wiles v. Bagley                                                            Page 13


generally require far greater time, support services, and expertise to prepare.7 And
capital trials are generally longer and more complex that non-capital trials. Beyond
more attorneys and attorney time, capital cases tend to involve more experts and related
expenses from experts and support staff.8 They also require a “death-qualified” jury,9
and bring the added costs of the “second trial” conducted during the penalty phase.10
And, because both sides of a capital case are usually funded at public expense, these
additional costs must be counted twice in calculating the added cost of a capital
prosecution.11

         Capital cases also involve a significantly longer post-conviction appeal process
than non-capital cases. Unlike non-capital cases, capital cases almost invariably proceed
through all avenues of post-conviction relief, including direct appeal, state post-
conviction proceedings, at least one federal habeas petition, and multiple petitions for
certiorari. Naturally, this is because capital defendants (and advocacy groups) have a
much stronger motive to pursue post-conviction remedies. But that is their right. Plus,
experience has shown that every stage of review is needed to guard against wrongful




         7
        See, e.g., AMERICAN BAR ASSOCIATION, GUIDELINES FOR THE APPOINTMENT AND PERFORMANCE
OF DEFENSE COUNSEL IN DEATH PENALTY CASES 3 (rev. ed. 2003) (“[D]eath penalty cases have become
so specialized that defense counsel have duties and functions definably different from those of counsel in
ordinary criminal cases.”). The ABA Guidelines go on to outline these duties and functions in detail.
         8
           GOULD & GREENMAN, supra note 3, at 29 (“The use of experts has a substantial influence on
case cost. . . . [E]xperts were utilized in both authorized and non-authorized cases. There is a significant
difference, however, in the prevalence, and hence cost, of expert assistance between authorized and
non-authorized cases.”).
         9
              As the 2006 Report by the Washington State Bar explains, “Since a very large number of
potential jurors likely will be excused, it is not uncommon for the court to summon over 1,000 potential
jurors. . . . In a non-capital case, fewer than 100 potential jurors are typically summoned.” FINAL REPORT
OF THE DEATH PENALTY SUBCOMMITTEE OF THE COMMITTEE ON PUBLIC DEFENSE, supra note 3, at 16.
Capital cases also involve much more searching, individualized voir dire than non-capital cases. As a
result, jury selection in a capital case can take a month instead of one or two days. Id. at 16-17.
         10
         See generally AMERICAN BAR ASSOCIATION, SUPPLEMENTARY GUIDELINES FOR THE
MITIGATION FUNCTION OF DEFENSE TEAMS IN DEATH PENALTY CASES (2008).
         11
           “[V]ery few” capital defendants can afford to pay for their own defense, so they rely upon
public defenders or counsel appointed by the court under the Criminal Justice Act. GOULD & GREENMAN,
supra note 3, at 16-17.
No. 05-3719            Wiles v. Bagley                                                             Page 14


convictions and correct the unusually high rate of error that plagues capital cases.12
However, the upshot of higher rates of collateral attack and reversal is that state and
federal courts are packed with capital cases,13 and the cases themselves take decades to
wind their way through the system.14 More appeals means more costs, regardless of why
the appeals arise. And reversal means repeating all or part of the process and thus
duplicating its time and expense.

         So, in almost every way, capital cases are more expensive than non-capital
cases.15 And given the death penalty’s exorbitant costs and many basic flaws, it is clear
to me that our scarce public resources can be put to better use. This is especially so
given what the public is getting for its money—little more than the time of lawyers and




         12
             A prominent study of state and federal capital cases between 1973 and 1995 fixed the overall
error rate in capital cases at 68% (as opposed to 15% in non-capital cases). JAMES S. LIEBMAN, JEFFREY
FAGAN & VALERIE WEST, A BROKEN SYSTEM: ERROR RATES IN CAPITAL CASES 1973-1995 at 8-9 (2000),
available at www2.law.columbia.edu/instructionalservices/liebman/. The study further found that 40%
of the death sentences that were upheld on direct appeal and through state post-conviction were
subsequently overturned during federal habeas proceedings. Id. at 6.
         13
          Including Wiles, 118 of Ohio’s 166 death row inmates (71%) have cases pending in federal
court. RICHARD CORDRAY, OHIO ATTORNEY GENERAL, CAPITAL CRIMES ANNUAL REPORT: STATE AND
FEDERAL CASES 2008 at 22 (2009). 28 more (17%) have cases pending in state court. Id.
         14
           This case, involving a death sentence imposed in 1986 (when the law clerk assisting me on this
case was three years old), is unexceptional in this regard. The average elapsed time from
sentence to execution in 2007 was 153 months—twelve years and nine months. TRACY L. SNELL,
BUREAU OF JUSTICE STATISTICS, CAPITAL PUNISHMENT, 2007—STATISTICAL TABLES (2008), available
at www.ojp.usdoj.gov/bjs/pub/html/cp/2007/cp07st.htm. The median elapsed time since sentencing for
inmates on death row at the end of 2007 was 133 months. Id.
         15
           This is in spite of the fact that capital defense services continue to be underfunded, much to the
prejudice of indigent capital defendants. See generally Stephen Bright, Counsel for the Poor: The Death
Sentence Not for the Worst Crime, but for the Worst Lawyer, 103 YALE L.J. 1835 (1994); see also ABA
MORATORIUM IMPLEMENTATION PROJECT, STATE DEATH PENALTY ASSESSMENTS: KEY FINDINGS (2007)
(finding, among other things, “[T]hat . . . (4) Capital indigent defense systems, whether statewide or
county-by-county, generally are significantly underfunded; (5) Many states are failing to provide for the
appointment of two lawyers at all stages of a capital case, nor are they guaranteeing access to investigators
and mitigation specialists; (6) Many states are requiring only minimal training and experience for attorneys
handling death penalty cases; and (7) The compensation paid to appointed capital defense attorneys is often
woefully inadequate, dipping to well under $50 per hour in some cases”) (emphasis added).
No. 05-3719            Wiles v. Bagley                                                           Page 15


judges and the “illusion” of capital punishment.16 Moral objections aside, the death
penalty simply does not justify its expense.

         Recent news reports indicate that the cost of the death penalty is becoming part
of the public debate on capital punishment and has begun to influence policymaking.17
That strikes me as a very positive development. I hope it continues.




         16
             Kozinski & Gallagher, supra note 6, at 3. Only nine of the thirty-six states which retain the
death penalty carried out executions in 2008, a year in which there was a total of thirty-seven executions
nationwide. SNELL, supra note14. At the end of 2007, there were 3,220 prisoners on death row. Id.
          Whatever one’s opinion of the intractable debate over deterrence, the empirical evidence is too
inconclusive to warrant much weight. See generally John J. Donohue & Justin Wolfers, Uses and Abuses
of Empirical Evidence in the Death Penalty Debate, 58 STAN. L. REV. 791 (2005) (conducting an
exhaustive review of the empirical literature on the death penalty and concluding, “Our estimates suggest
not just ‘reasonable doubt’ about whether there is any deterrent effect of the death penalty, but profound
uncertainty. We are confident that the effects are not large, but we remain unsure even of whether they are
positive or negative”).
         17
            See, e.g., Opponents Focus on Cost in Death Penalty Debate (National Public Radio April 1,
2009); Judy Kerr, What Price Vengeance, SAN FRANCISCO CHRONICLE, Mar. 13, 2009, at A15;
Saving Lives and Money, T H E E C O N O M I S T , Mar. 12, 2009, available at
www.economist.com/world/unitedstates/displayStory.cfm?story_id=13279051; Michelle Millhollon,
Economics of Executions, ADVOCATE CAPITOL NEWS, Mar. 8, 2009, at 1A; Deborah Hastings, In Hard
Times, Executions Become a Question of Cost, ASSOCIATED PRESS, March 7, 2009, available at
www.usatoday.com/news/nation/2009-03-07-exepensive-to-execute_N.htm; Steve Mills, In Many States,
Cost is Slowly Killing Death Penalty, CHICAGO TRIBUNE, March 7, 2009, available at
archives.chicagotribune.com/2009/mar/07/nation/chi-death-penalty-costsmar08; Abigail Goldman,
Debating the Cost of the Death Penalty, LAS VEGAS SUN, March 4, 2009, available at
www.lasvegassun.com/news/2009/mar/04/debating-cost-death-penalty/; Martha Bellisle, Nevada Bill
Requires Moratorium, Study of Death Penalty Cost, RENO GAZETTE-JOURNAL, March 3, 2009, available
at www.rgj.com/article/20090303/NEWS18/90303060; Ed Quillen, The Death Penalty’s Costs, DENVER
POST, March 1, 2009, available at www.denverpost.com/perspective/ci_11795714; Ian Urbina, Citing
Cost, States Consider End to Death Penalty, N.Y. TIMES, February 25, 2009, at A1.
          In addition to New Mexico, which abolished the death penalty on March 18, 2009, a number of
states, including Colorado, Nevada, Montana, Nebraska, Kansas, Maryland, and New Hampshire are
reconsidering their capital punishment policies, in part because the cost of the death penalty. Colorado,
for example, is currently considering a bill (H.B. 09-1274) that proposes to abolish the death penalty and
instead spend the money saved on investigating cold cases.
