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Gregory J. O’Meara, The Name Is the Same, But the Facts Have Been Changed To Protect the Attorneys: Strickland, Judicial Discretion, and Appellate Decision-Making, 42 Val. U. L. Rev. 687 (2008)

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42 Valparaiso University Law Review 687 (2008)


The gap between historical events and the way courts recount them in appellate decisions is highlighted by the differences in fact descriptions offered in the same case: Strickland v. Washington. The Supreme Court's majority decision ignores or recasts facts found in the lower courts in this case.

Paul Ricoeur, the leading philosopher of narrative, provides a framework that explains how legal facts are malleable and subject to distortion in his work on non-fiction narratives. He lays out instabilities inherent in any use of language and then broadens his inquiry to show that the transition from the oral to the written word can profoundly change the intended meaning of a text. What becomes central in this shift is the reader's understanding rather than the author's intent.

Ricoeur explains the three phases of writing non-fiction narratives: 1) the documentary phase, 2) the explanatory phase, and 3) the narrative phase. The key for understanding judicial discretion is the second or explanatory phase. Here Ricoeur explains the uncertainty that emerges as parties try to adjust their rendering of facts to come to agreement. By ignoring or embellishing facts in the record, courts may obscure explanatory chains that undergird settled decisions in lower courts. Therefore, appellate courts may do what previous theorists suggested: base decisions on factual descriptions that have little to do with historical events.

Applying Ricoeur's insights to the Strickland line of cases, the holdings in Wiggins and Rompilla rest on factual considerations considered irrelevant in Strickland. The upshot is startling: representation by counsel in Strickland, who did very little, was found constitutionally effective; representation by counsel in these two later cases, who did a great deal, was found ineffective. Although the Court continues to use the legal formula announced in Strickland, it has changed the law in that case by changing the way it recounts facts found in the lower courts.

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