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.”