Recent Decisions
Bobby v. Van Hook
(November 9, 2009) (per curiam)
In a per curiam opinion, the Court reversed the Sixth Circuit’s holding that Robert Van Hook received ineffective
assistance of counsel at the sentencing phase of his Ohio capital trial. Because Van Hook’s federal habeas
petition was filed prior to April 24, 1996, 28 U.S.C. § 2254's limitation on relief was inapplicable to the claim.
The Court began by criticizing the Sixth Circuit’s use of the ABA’s 2003 death penalty guidelines which were
announced 18 years after Van Hook’s trial. “Judging counsel’s conduct in the 1980’s on the basis of these 2003
Guidelines—without even pausing to consider whether they reflected the prevailing professional practice at the time
of the trial—was error.” Making matters worse, according to the Court, was the Sixth Circuit’s treatment of “the
ABA’s 2003 Guidelines not merely as evidence of what reasonably diligent attorneys would do, but as inexorable
commands with which all capital defense counsel ‘“must fully comply.”’” (Citation omitted.) In a footnote, the
Court observed that it was not deciding whether a less categorical use of the detailed 2003 Guidelines to assess
post-2003 representation would be appropriate. In order for that to be proper, the Court explained that the
Guidelines would have to be shown to reflect prevailing norms of practice and not be so detailed that they would
“interfere with the constitutionally protected independence of counsel and restrict the wide latitude counsel must
have in making tactical decisions.” (Citation omitted.)
The Court next turned to Van Hook’s argument that any misstep by the Sixth Circuit in its treatment of the 2003
Guidelines was immaterial because Van Hook had established counsel’s ineffectiveness under the professional
standards prevailing at the time of his trial. This contention was simply “wrong” in the Court’s view. First, the
Court rejected as factually inaccurate the Sixth Circuit’s finding that counsel did not start an investigation into
Van Hook’s background until shortly before the sentencing hearing. Second, it labeled the Sixth Circuit’s finding
that counsel possessed only limited information about Van Hook’s traumatic past to be “a gross distortion.” The
Court refuted the Sixth Circuit’s finding by setting out in detail the information the trial court had about Van
Hook’s difficult upbringing. The Court further noted that the mental health experts who had evaluated Van Hook had
opined that his ability to refrain from committing the murder may have been impaired by his borderline personality
disorder and his drug and alcohol consumption. One expert also theorized that homosexual panic may have caused Van
Hook’s explosion of “senseless and bizarre brutality.” The Court was unpersuaded by Van Hook’s argument that the
information counsel did possess would have led reasonable counsel to interview additional family members such as a
step-sister and aunts and uncles. It found instead that “there comes a point at which evidence from more distant
relatives can reasonably be expected to be only cumulative, and the search for it distractive from more important
duties.” Further, the ABA Standards in effect at the time of trial required counsel to look into “several broad
categories of mitigating evidence,” a requirement that counsel in fact fulfilled. “And given all the evidence they
unearthed from those closest to Van Hook’s upbringing and the experts who reviewed his history, it was not
unreasonable for his counsel not to identify and interview every other living family member or every therapist who
once treated his parents.”
The Court then found that even if counsel could be criticized for failing to dig deeper into Van Hook’s past, Van
Hook failed to show prejudice. It agreed with the state court’s conclusion that testimony by new witnesses
identified by Van Hook “would have added nothing of value.” Only two of the witnesses even arguably could have
provided new information and their new facts were simply “minor additional details” about subjects the trial court
had learned about. Finally, the Court recounted the aggravating evidence in the case and again found error in the
Sixth Circuit’s decision in that it mistakenly focused on the number of aggravating circumstances instead of their
weight. This led the Sixth Circuit “to overstate further the effect additional mitigating evidence might have
had.”
Justice Alito filed a concurrence to “emphasize [his] understanding that the opinion in no way suggests that the
American Bar Association’s Guidelines for the Appointment and Performance of Defense Counsel in Death Penalty Cases
(rev. ed. 2003) (2003 Guidelines or ABA Guidelines) have special relevance in determining whether an attorney’s
performance meets the standard required by the Sixth Amendment.”