Oral Argument Preview: Ineffective Assistance of Counsel at Mitigation Phase of Death Penalty Case. State of Ohio v. Willie Herring.

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

Read the analysis of the oral argument here.

On April 29, 2014, the Supreme Court of Ohio will hear 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

The night of April 29, 1996, Defendant-Appellee Willie Herring and four co-defendants entered a stolen van. Shortly thereafter, they arrived at a blue house; Herring went inside and returned to the van with multiple firearms. With the acquired weapons, the group decided to rob the New Port Inn, a bar in Youngstown.

Sometime between 1:45 and 2:15 a.m., the group burst into the bar and bullets started flying. Herring shot the owner of the bar four times in the stomach and demanded all the money from the bar. After being shot, the bar owner attempted to draw a gun; however, Herring immediately took the gun away and proceeded to shoot the owner in his legs. As a result of the robbery, three people were killed and two were severely wounded but survived.

Subsequently, Herring was indicted for 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. Although his fellow co-defendants were similarly culpable, Herring was the only one to face the death penalty. Herring was 18 years old at the time of the offense.

Herring was represented by appointed counsel at trial.  Although the two lawyers had over a year to prepare, they secured a mitigation specialist only a few weeks before trial. A mistrial was declared which gave counsel more time to prepare for mitigation; however, they didn’t, and the mitigation specialist only recorded 8.5 hours of work during the extra time. At re-trial, the jury convicted Herring of three counts of complicity to aggravated murder and all related counts and specifications.

At the penalty phase, with little mitigation evidence to draw from, counsel focused on the extreme sentencing disparity between Herring and his co-defendants. In addition, counsel put on Herring’s mother and sister to convey Herring’s positive qualities. Their combined testimony was only six and one half pages of transcript. This testimony was later characterized as little more than pleas for mercy. 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 returned a sentence of death. Herring’s conviction and sentence were upheld by the Supreme Court of Ohio on direct appeal.

First Post Conviction Appeal

On September 17, 1999, Herring filed a petition for post-conviction relief alleging he received 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.  Some examples of what should have been uncovered and presented in mitigation was the fact that Herring grew up in a dilapidated, drug and gang ridden area in Youngstown, and was a toddler when his biological father was shot in a drug dispute. His mother had seven children with five different men. Herring’s mother abused drugs, including crack cocaine while he was growing up and was totally out of it when it came to his schooling.  All the men on his father’s side were involved in drugs, and many were killed or jailed due to drug violence.  This was the only life Herring knew from an early age.  He had no exposure to normal adult behavior. His was a life of drug abuse and violence.

The trial court denied Herring’s post-conviction petition 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.

Second Post Conviction Appeal

On the second appeal, 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 appeals court found that trial counsel were ineffective in relying on the investigation of the mitigation specialist instead of ensuring for themselves that the investigation was complete and accurate, and that with the undiscovered mitigating evidence, the sentencing outcome probably would have been different. The appeals court made it clear that while generally the existence of an alternative mitigation theory does not establish ineffective assistance of trial counsel, in this case the defective assistance was based on the fact that the trial lawyers could not have made a reasonable decision about what mitigation theory to pursue, because they did not have the information needed to make that decision, given their lack of any investigation of Herring’s background.

Key Precedent

Sixth Amendment to the U.S. Constitution (“In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial . . . and to have the assistance of counsel for his defense.”)

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.)

Burger v. Kemp, 483 U.S. 776 (1987) (the decision by trial counsel to focus solely on the defendant’s positive mitigation evidence was professionally reasonable in order to avoid the jury learning of the defendant’s violent past and disturbed family background.)

Williams v. Taylor, 529 U.S. 362 (2000) (trial counsel has the duty to conduct a diligent investigation into a client’s background and personal circumstances.)

Rompilla v. Beard, 545 U.S. 374 (2005) (trial counsel provided ineffective assistance of counsel by failing to follow several available avenues of investigation that would have led to the discovery of compelling mitigation evidence.)

Drummond v. Houk, 761 F. Supp.2d 638 (N.D. Ohio 2010) (it was reasonable for counsel to rely on an expert and to presume the expert had prepared for the trial; therefore, trial counsel cannot be held responsible in an ineffective assistance of counsel proceeding for the failure of their expert.)

State’s Argument

The State argues that trial counsel presented a professionally reasonable mitigation defense and that they cannot be responsible for the mitigation specialist’s failure to conduct a complete investigation.

First, the State argues that, under Burger, focusing on “positive” mitigation is a professionally reasonable strategy. Here, trial counsel admitted that they thought that any negative evidence showing Herring’s involvement in a life of crime would simply provide more ammunition for the jury to recommend a death verdict. Further, a heavy measure of deference should be given to counsel’s judgments in regard to trial strategy.

Second, the State argues that under Drummond, the trial counsel cannot be held responsible for the deficient performance of an expert. Therefore, because the trial counsel’s performance was professionally reasonable, the first Strictland prong is not met. As such, Herring does not have a valid ineffective assistance of counsel claim.

Third, the State argues Herring refused to provide counsel with his negative background information, thereby impeding the mitigation investigation. Therefore, it goes against public policy to allow Herring to benefit in post-conviction proceedings from purposefully impeding the investigation.

Lastly, the State argues that putting on more witnesses for Herring would have led to disastrous results. Specifically, most of Herring’s family did not believe that Herring was actually involved in the crime and thought he was framed by the police. Further, allowing more witnesses to testify could have “opened the door” to many of Herring’s past crimes. In addition, the strongest mitigation for Herring was the sentence disparity between his co-defendants and that disparity was presented at mitigation.

Herring’s Argument

Herring argues that the trial counsel are responsible for the deficient investigation conducted by the mitigation specialist and that the failure of counsel to present a proper mitigation defense prejudiced him at sentencing.

First, Herring argues that trial counsel were unreasonable when they hired the mitigation specialist only a few weeks before the trial. They knew or should have known that doing so would not give the expert enough time to conduct a complete investigation.

Second, Herring argues that trial counsel, by hiring the specialist, had a duty to control and supervise the work and make sure that it was completed. Here, counsel failed to take steps to appraise the progress of the investigator and only met with the investigator once.

Third, under Rompilla, Herring has a legitimate claim of ineffective assistance of counsel. In Rompilla, as in this case, the counsel presented some mitigation evidence but failed to present other relevant mitigation evidence or explore additional avenues for mitigation. Similarly, Herring’s counsel presented a lackluster mitigation that ignored a wealth of evidence demonstrating Herring’s harsh life and disadvantaged upbringing.

Lastly, Herring argues that if counsel had presented the proper mitigation evidence, Herring would probably not have received the death penalty. For evidence, Herring points to the fact that it took the jury two days to reach a recommendation on the death penalty even though the mitigation presentation was substandard. A proper mitigation would have humanized Herring and the jury would probably not have returned a death verdict.

State’s Proposed Proposition of Law No. 1

Defense counsel’s performance is constitutionally effective under the federal and state constitutions where, absent any knowledge of a mitigation expert’s shortcomings, they proceed reasonably in light of the information that they have obtained, and despite the fact that a mitigation expert failed to complete several tasks in preparation for the sentencing phase of a capital trial.

State’s Proposed Proposition of Law No. 2

Capital defendants do not have a federal constitutional right to the effective assistance of a mitigation specialist; therefore, a mitigation specialist’s deficiencies cannot be imputed to trial counsel without having sufficient knowledge of those deficiencies.

State’s Proposed Proposition of Law No. 3

An appellate court errs in finding that trial counsel was constitutionally ineffective without determining whether or not the defendant suffered actual prejudice as a result of trial counsel’s performance, as set forth in Strickland v. Washington.

Herring’s Proposed Counter Proposition of Law No. 1

In a capital case, trial counsels’ representation is constitutionally ineffective when they fail to ensure that a proper mitigation investigation is completed and their client is prejudiced as a result.

Herring’s Proposed Counter Proposition of Law No. 2

Trial counsel have an affirmative duty to ensure that a proper mitigation investigation is performed and cannot circumvent that duty by hiring someone else to perform the necessary tasks.

Herring’s Proposed Counter Proposition of Law No. 3

An appellate court correctly finds that trial counsel were constitutionally ineffective when it finds that trial counsel were deficient in their performance and that the appellee was prejudiced by that deficiency under the analysis set forth in Strickland v. Washington.

Student Contributor: Cameron Downer


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