Update: On December 3, 2014, the Supreme Court of Ohio handed down a merit decision in this case.  Read the analysis here.

On April 29, 2014, the Supreme Court of Ohio heard oral argument in the case of State of Ohio v. Willie Herring, 2011-0451. At issue in this case is whether, in a capital case, a defendant is deprived of effective assistance of counsel when trial counsel fail to ensure that a proper mitigation investigation is completed and presented.

Case Background

In 1996, Herring was one of five masked gunman who robbed a bar in Youngstown Ohio which led to a shooting that left three people dead and two seriously wounded.  Herring was charged with one count of aggravated murder, three counts of attempted aggravated murder, three death penalty specifications involving the purposeful killing of, or attempt to kill, two or more persons, six firearm specifications, and two counts of aggravated robbery.Of the six men involved in this crime, Herring, just eighteen at the time, was the only one to face the death penalty.

Herring was represented by two appointed counsel. They retained a mitigation specialist just a few weeks before trial. That trial resulted in a mistrial, giving counsel and the mitigation specialist about five more months to do their work. But during that time, the mitigation specialist recorded only 8.5 hours of work. At re-trial, the jury convicted Herring of three counts of complicity to aggravated murder, and related counts and specifications.

At the penalty phase, counsel opted to present a positive mitigation theory, choosing to keep Herring’s negative family background and criminal record from the jury. Herring’s mother and sister testified briefly at that hearing. Herring did not testify, no expert testimony was presented to the jury, and no medical or neurological examinations were performed.  After a two day deliberation, the jury recommended a sentence of death. The trial court sentenced Herring to death. Herring’s conviction and sentence were upheld by the Supreme Court of Ohio on direct appeal.

Herring filed a petition for post conviction relief in 1999, alleging ineffective assistance of counsel during the mitigation phase of his capital proceedings. As part of the post-conviction petition, the retained mitigation expert stated in an affidavit that he failed to complete most of his identified tasks and provided a substandard investigation. Another psychologist, retained post-conviction to evaluate the quality and thoroughness of the mitigation presented at trial, submitted an affidavit that the jury should have been provided a complete picture of Herring and his family, which was not caring and supportive, but totally dysfunctional, involving Herring in a life of drugs and alcohol from a young age.

Herring’s post-conviction petition was denied without fact development or a hearing and Herring appealed. The Seventh District Court of Appeals reversed in a split decision, and remanded the case to assess whether counsel knew of the shortcomings of their mitigation specialist and whether their decision to present only positive mitigation evidence was reasonable. After a hearing at which trial counsel testified, the trial court found that Herring’s lawyers were not deficient and thus denied the petition.

Herring filed a second appeal. This time, the Seventh District Court of Appeals vacated Herring’s death sentenced, and remanded for a new sentencing hearing, after finding that the trial court abused its discretion in denying the petition. The appeal of this decision is what is before the Supreme Court.  Read the oral argument preview of the case here.

Key Precedent

Strickland v. Washington, 466 U.S. 668 (1984) (to prove a claim of ineffective assistance of counsel, the defendant must show that: (1) counsel’s performance was deficient, and (2) the deficient performance prejudiced the defense.)

At Oral Argument

Justice Pfeifer arrived late, appearing very near the end of the defense argument.

State’s Argument

Herring’s trial counsel proceeded reasonably in investigating and presenting a mitigation theory in this case. They made a tactical decision to present a positive mitigation theory, and to stay away from the negative aspects of Herring’s life and upbringing, especially coming on the heels of the horrendous details of the killings in the case. They believed that a negative approach would make it more likely the jury would recommend a death sentence.

The adequacy of the mitigation theory is not before the Court. The only question is whether counsel acted reasonably, taking into account all the information they knew at that time. That is and always has been the standard. Despite fact that the mitigation specialist did an inadequate job, counsel proceeded reasonably and presented a reasonable mitigation theory based on everything they knew at that time. Furthermore, even if everything that has since come to light would have been presented to the jury, the outcome would not have been different.

Herring’s Argument

At the Supreme Court, Herring was represented by the Director of the Center for Justice in Capital Cases at the DePaul University College of Law.

The appellate court got it right here, in reversing the trial court. It is defense counsel, not the mitigation specialist, that are responsible for conducting the investigation into the defendant’s background. Under Strickland v. Washington, a defendant has the right to the effective assistance of counsel, which includes a complete and thorough investigation by defense counsel. It is defense counsel that should be responsible for understanding when there is a need for a neuropsychologist or other experts. It is defense counsel that must gather the evidence to give to their experts. That simply did not happen here.

The fact that their mitigation specialist said he didn’t find much should have been a red flag to the lawyers in this case. According to the mitigation specialist’s bill, the first time he met the defendant was when jury selection had already begun in the first trial. Counsel in a capital case cannot even pick a jury unless they know what their mitigation strategy is going to be. And it is counsel’s job to be sure the investigative work gets done. 8.5 hours of time spent by the mitigation specialist was woefully inadequate, under any standard. The comparable standard in federal court for a mitigation specialist would be a 200 hour minimum for such work.

What was discovered post conviction shows what should have been discovered in the first place. (Herring’s lawyer recited at length the specifics of Herring’s background of drugs, alcohol, crime, and violence from a young age, and a totally dysfunctional family situation.)

While the decision to present a positive mitigation theory can be an acceptable strategy, it has to be based on all the information available. One cannot defer to a decision made in the absence of information. It is not a strategic decision in the absence of information. In this case, Herring’s lawyers could not make a strategic decision about whether to pursue a positive or a negative mitigation theory, since they simply did not know anything.

Finally, the second prong of the Strickland test is not whether the outcome would be have been different, but whether there is a substantial likelihood that the result is not reliable. In this case, had the jury properly heard the evidence of Herring’s very troubled background, it would not have imposed the death penalty. The jury did acquit him of being a principal offender, and was out a very long time in the penalty phase, even without this information. That suggests that least one person on the jury was not comfortable with the death penalty.

What Was on their Minds

Standard of Review

Justice O’Neill commented that he thought everyone in the room would agree that the mitigation testimony was woefully inadequate (indeed, the prosecutor conceded that it was, but reminded the court that the adequacy of the mitigation theory was not the issue before it), but asked about the standard of review.

Deferring to Trial Tactics and Strategies

Justice O’Neill commented that case law was clear that courts don’t interfere with trial tactics, but asked exactly how far that went?

Was trial counsel reasonable at the time, asked Chief Justice O’Connor?

What was unreasonable about the strategy of defense counsel to present the defendant in as positive a light to the jurors as they could, as opposed to choosing to present all the negatives in his life, asked Justice O’Donnell?

What did defense counsel know and when did they know it, asked Chief Justice O’Connor?

The Mitigation Specialist Retained by Defense Counsel

Had the defense mitigation specialist ever been hired to do that kind of work before, asked Justice Lanzinger? (answer: yes) Exactly when was he hired? Did he ever tell defense counsel his investigation was incomplete at any time other than after the fact? What if he doesn’t ask for additional information? Was there anything during the trial to put trial counsel on notice of his incomplete investigation? Should the report itself have been notice of this? Is there any standard that says there has to be a specific period of time for a mitigation specialist to complete the work? She later commented that the record seemed to show that defense counsel were readily accessible to their expert, and that she was having trouble putting all deficiencies on counsel, and not on the mitigation specialist.

Should the information defense counsel received from the mitigation specialist have been the red flag to them, asked Chief Justice O’Connor?

Other Expert Testimony

The psychologist retained by the original defense team did not recommend a neuropsychologist, noted Chief Justice O’Connor. Should defense counsel have decided on their own to retain one? The recommendation to retain a neuropsychologist was made after the fact. How could trial counsel have known to do that? Later, she asked, isn’t there much more evidence available today about the effect of drugs and alcohol on the developing brain?

Strickland v. Washington.

Where is the record evidence that but for counsel’s performance the outcome in this case would have been different, asked Justice O’Donnell?

Since it is the state that is the appellant here, isn’t it the state that has to prove that even if all the professionals recommended post conviction had testified, and all that information had come in, there would not have been a different outcome, asked Justice O’Neill?

What Would Happen at a Resentencing

If this case gets sent back, what law should the Court write, asked Justice French, borrowing Justice O’Donnell’s favorite question. Should the Court impose some practical guidelines?

If the Court were to affirm the appeals court, what happens next, asked Chief Justice O’Connor? At a re-sentencing would death still be on the table?

If a re-sentencing is ordered, would there be a new mitigation investigation, asked Justice Lanzinger? Would there be further evidence adduced?

In the event of a re-sentencing remand, would life without the possibility of parole be on the table, asked Justice O’Neill? Justice Pfeifer later asked the same thing. The prosecutor answered that he really hadn’t researched the issue, but thought the answer would be no, except in a plea bargain.

How it Looks from the Bleachers

To Professor Bettman

Like a split decision, with a slight edge to Herring. The prosecutor conceded that the investigation done by the mitigation specialist was substandard. The difference between the two sides is whether that should be imputed to defense counsel for purposes of an ineffectiveness analysis.

I always find it ironic when it is up to the prosecution to argue what a good job the defense has done. The prosecutor here was pretty much a johnny-one-note—that what defense counsel did was a reasonable trial tactic, given the information they had, and should not be second guessed.  Justice Lanzinger appeared most sympathetic to this argument, and is likely to be joined by Justice O’Donnell, who seemed most accepting of the deference to trial tactic argument.  Additionally, O’Donnell has consistently been unsympathetic to arguments about cutting special breaks for very young offenders who commit horrendous crimes.  He also did not seem to accept the fact that different information would have meant a different outcome here.

I initially thought defense counsel (who I thought was excellent) was coming on way too strong, and was antagonizing Chief Justice O’Connor, who spent periods of the argument in her staccato-prosecutor-questioning-mode, to both counsel.  But I think the Chief began to turn, as she began to grasp the argument that defense counsel did not have enough information to make an informed mitigation strategy choice and the fact that they didn’t was their fault, which put it beyond just being a trial tactic. She also has been a strong believer of young offenders still being works in progress, and clearly thought the jury should have gotten information on the effect of drugs and alcohol on the developing adolescent brain.  I think Justices O’Neill and Pfeifer will uphold a re-sentencing remand, and hope that the defendant accepts a plea bargain to life without the possibility of parole.  These three will have to pick up a fourth vote, which might include Justice French.  As usual, there is no way to tell which way Justice Kennedy is leaning.

To Student Contributor Cameron Downer

After a lengthy oral argument, this case looks like a win for Herring.

Counsel for Herring was extremely passionate during oral argument and did a great job of using her experience in capital defense to highlight the deficient mitigation in the case. Conversely, counsel for the State did his best to steer the justices into only considering whether or not defense counsel proceeded reasonably without giving much weight to the deficient mitigation. Both Justice Lanzinger and Justice O’Donnell questioned the reasonableness of hiring a specialist with only weeks before trial. Justice O’Neill questioned both parties as to what standard of review should apply due to the underlying issue of reasonable trial tactics. Chief Justice O’Connor questioned how the trial counsel should have known that Herring needed a neurological examination when the psychologist who provided Herring’s medical examination did not recommend it. Justice Pfeifer, who was absent most of the argument, came in shortly before the State’s rebuttable to ask questions regarding whether Herring could be resentenced under new laws that allow for a sentence of life without parole.

Although the Court asked a wide array of questions, it seemed like a majority of the justices agreed that something unacceptable went wrong with Herring’s mitigation investigation that it likely prejudiced him at trial.