Merit Decision: Counsel Prejudicially Ineffective in Mitigation Phase in Death Penalty Case. State v. Herring.

Update: This case was sent back for resentencing. Read what happened on remand here.

On December 3, 2014, the Supreme Court of Ohio handed down a merit decision in State v. Herring, 2014-Ohio-5228. In a 4-3 opinion written by Justice Paul Pfeifer, the court granted Herring’s petition for post-conviction relief in this death penalty case on the grounds of ineffective assistance of counsel in failing to properly prepare the mitigation phase of the proceedings. The case will be sent back to the trial court for resentencing.  Joining Justice Pfeifer in the majority were Chief Justice O’Connor, and Justices French and O’Neill.  Justice O’Donnell wrote the dissent, joined by Justices Lanzinger and Kennedy.  The case was argued April 29, 2014.

Case Background

Willie Herring, barely 18 at the time, and five other men, robbed the Newport Inn, a bar in Youngstown, shortly after midnight on April 30, 1996. Three people in the bar ended up dead, and two others seriously wounded in the resulting gunfire.  It was later determined that Herring was the ringleader of this massacre.


Guilt Phase

Herring was convicted of three counts of complicity to commit aggravated murder, two counts of attempted aggravated murder, two counts of aggravated robbery, and firearms specifications. Herring was also found guilty of three course-of-conduct death-penalty specifications that went with each of the murder counts.

Penalty Phase

At the penalty phase, Herring’s two lawyers 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 about his good and loving relationship with his siblings. Herring did not testify, no expert testimony was presented to the jury, and no medical or neurological examinations were performed. Herring’s lawyers presented evidence that none of Herring’s accomplices had received the death penalty. Herring’s youth was also raised as a mitigating factor. The jury recommended death for all three aggravated murders. The trial court sentenced Herring to death. Herring’s conviction and sentence were upheld by the Supreme Court of Ohio on direct appeal.

Postconviction Proceedings

Herring filed a petition for postconviction relief in September 1999, alleging ineffective assistance of counsel during the mitigation phase of his capital proceedings. As part of the post-conviction petition, the retained mitigation specialist, Thomas Hrdy, (no, that is not a typo) stated in an affidavit that he failed to complete most of his identified tasks and provided a substandard investigation. Other affidavits included one from a psychologist, Dr. Jolie Brams, who stated that jurors received no meaningful psychological information about Herring. She described Herring as a “feral child” who was “raised in an environment in which basically every parental figure, caregiver, family member, and associate was involved in illegal activities, [and] significant drug and alcohol abuse.” She also opined a neuropsychological and psychiatric evaluation should have been performed and followed up.  Other family members supplied affidavits about Herring’s gang involvement, life as a drug dealer, and mother’s drug use.

Herring’s postconviction petition was denied by the trial court.

The Seventh District Court of Appeals reversed in a split decision, and remanded the case to assess whether trial 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, but Hrdy did not, the trial court found that Herring’s lawyers were not deficient and again 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 and the analysis of the argument here.

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).

ABA Guidelines for the Appointment and Performance of Counsel in Death Penalty Cases, Guideline 11.4.1(C)(1989)(in effect at time of Herring’s trial)(Counsel should undertake investigation for preparation for sentencing phase, which should comprise efforts “to discover all reasonably available mitigating evidence and evidence to rebut any aggravating evidence that may be introduced by the prosecutor.”)

Williams v. Taylor, 529 U.S. 362, 396 (2000) (counsel has the duty to conduct a thorough investigation of a capital defendant’s background).

Wiggins v. Smith, 539 U.S. 510, 521 (2003) (“Trial counsel can make the decision to forego the presentation of evidence, but only after a full investigation. * * * Only after completing a full investigation can counsel make an informed, tactical decision about what information to present in their client’s case.”)

Jells v. Mitchell, 538 F.3d 478, 492 (6th Cir.2008) (“This constitutionally required background investigation is necessary to enable counsel to make strategic choices about presenting a mitigation defense. * * * Indeed, the deference owed to counsel’s strategic judgments about mitigation is directly proportional to the adequacy of the investigations supporting such judgments.”)

Goodwin v. Johnson, 632 F.3d 301 (6th Cir.2011) (Although pursuing a residual-doubt strategy, defense counsel was deficient by not speaking to most of defendant’s relatives, had not reviewed his schools records, and did not have him evaluated. If counsel would have done so, they would have learned of more mitigating evidence, such as defendant being abused by his drug-using mother, performed poorly in school, and his psychological problems.)

State v. Lang, 2011-Ohio-4215 (“Debatable trial tactics generally do not constitute a deprivation of effective counsel.”)

Cullen v. Pinholster, 131 S.Ct. 1388 (2011) (When determining a mitigation strategy, “it certainly can be reasonable for attorneys to conclude that creating sympathy for the defendant’s family is a better idea because the defendant himself is simply unsympathetic.”)

Merit Decision

Executive Summary

Even though this is a very long opinion because of the amount of detail about the actual and potential mitigating evidence, and a large number of precedential cases, the holding is simple and clear: a defendant is deprived of effective assistance of counsel when trial counsel fail to ensure that a proper mitigation investigation is completed and presented. Although the case has no syllabus, that could be it.


As I noted after the argument, there is a certain irony in it being up to the prosecution as appellant in this case to defend the work of defense counsel, and to convince the court they were not constitutionally ineffective in the penalty phase of a death penalty case. In his supreme court case, Herring was no longer represented by his original trial lawyers. He was represented by the Ohio Public Defender’s office, and the oral argument on his behalf was made by Andrea D. Lyon, then Director of the Center for Justice in Capital Cases at the DePaul University College of Law, and now Dean and Professor of Law at Valpariso University.

The holding in this case is very simple.  It is the responsibility of trial counsel to conduct a full mitigation investigation and to present an adequate mitigation theory. Herring’s trial lawyers failed to do that in this case. Trial counsel can’t foist the blame for an inadequate investigation onto their retained mitigation specialist. Think of that responsibility as a non-delegable duty, to borrow a term from tort law. And Herring was prejudiced by the ineffectiveness of his counsel in this case because there is a reasonable probability that the penalty-phase outcome would have been different had the lawyers done their jobs properly.  That’s it.  The rest is detail.

Mitigation Strategy in this Case

Herring’s trial lawyers chose to present a positive mitigation strategy in the penalty phase of his case. Their position was that negative information would make it more likely that the jury that had been chosen would impose the death penalty.

Generally, strategic decisions by trial counsel are not a basis for reversal, and the state took that position in this case. But the court agreed with Herring’s appellate counsel–who really pounded on this point at oral argument–that a positive-mitigation theory can only be selected after counsel had made a complete mitigation investigation.  Here, a positive mitigation theory was unjustified and ineffective because the decision was made before a complete and thorough investigation had been made into Herring’s background.

Inadequacy of Retained Mitigation Specialist Imputed to Defense Counsel. The Buck Stops With Counsel.

Herring’s defense counsel initially hired Thomas Hrdy as their 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. Hrdy himself admitted in the affidavit attached to the postconviction petition that his work was inadequate. He failed to interview family members other than Herring’s mother. He failed to obtain information about Herring’s dysfunctional childhood, the murder of his father when he was a young child, his gang involvement, substance abuse, and his mother’s drug addiction, his low IQ, and his possible organic brain impairment. He failed to get specific records necessary for the investigation. He did not recall if he told the lawyers he was running out of time, but the court found that the billing statement he sent the lawyers should have alerted them to the fact that he had not put in the time necessary to conduct an adequate investigation.

The state made the point that capital defendants have no constitutional right to the effective assistance of a mitigation specialist. Therefore, the state argued that defense counsel were not ineffective because they didn’t realize Hrdy hadn’t done his job, and it was professionally reasonable for them to have assumed that he had.  The state also argued Hrdy’s ineffectiveness could not be imputed to defense counsel. But the court categorically and unequivocally rejected both arguments, finding the duty was on defense counsel to discover all mitigating evidence, and they could not put the blame for failure to uncover mitigating evidence onto their expert. Rather, Hrdy’s incompetence was to be imputed to them.

“Trial counsel’s strategy to present only ‘positive mitigation’ was deficient because neither defense counsel nor the mitigation specialist completed a thorough mitigation investigation beforehand. Trial counsel’s responsibility to ensure that an investigation was completed cannot be excused because of Hrdy’s omissions, Hrdy’s failure to communicate with counsel, or Herring’s refusal to provide trial counsel with negative information about his family, ” wrote Pfeifer.

Prejudice Prong is Met

The court summed up the mitigation hearing as follows:

“The judge and jury heard almost nothing that would have humanized Herring or allowed them to gauge his moral culpability. They learned about Herring’s crimes, that his mother and sister loved him, that his accomplices did not receive the death penalty, that he was young, and almost nothing else. Had Herring’s counsel been effective, the judge and jury could have learned of the ‘kind of troubled history’ that the US Supreme Court has “declared relevant to assessing a defendant’s moral culpability.’”

Applying the crucial test from the seminal Strickland v. Washington case, the court concluded that had the proper work been done there was a reasonable probability that the outcome in the penalty phase of this trial would have been different.


The court concluded that trial counsel were deficient in failing to conduct a thorough investigation into Herring’s background before the mitigation hearing, and this deficiency was prejudicial.  The case was remanded for a new sentencing hearing.  The majority expressly stated no opinion on whether the aggravating circumstance in this case outweighs the mitigating factors.

The Dissent

Justice O’Donnell, usually the justice least sympathetic to criminal defendants, wrote the dissent for himself and Justices Lanzinger and Kennedy. It is his position that Herring failed to rebut the presumption that his trial counsel performed competently, nor had he proven prejudice.

O’Donnell would accept the state’s argument that defense counsel were not on notice of the inadequacy of the investigation done by their mitigation specialist, but that even if they should have known, there was no proof that a more in-depth investigation would have turned up anything they didn’t already know.

O’Donnell emphasized that “debatable trial tactics generally do not constitute a deprivation of effective counsel,” and would find that none of Herring’s claimed errors are anything more than disagreement over trial strategy, which is the province of defense counsel, not mitigation specialists.

Finally, O’Donnell would find that even if his counsel were deficient, Herring failed to establish prejudice.  He chided the appeals court for failing to reweigh the mitigating factors against the aggravating circumstances in the case. To him, Herring’s role as ringleader in the killing and his role on how things went down were paramount. He found the strategy to present a positive mitigation theory appropriate in the case, noting also that trial counsel argued decisively that Herring had not been convicted as a principal offender and that none of his accomplices had gotten the death penalty. Finally, he cited recent U.S. Supreme Court authority that evidence of a dysfunctional family, drug abuse, and gang involvement is not necessarily clearly mitigating. The bottom line to O’Donnell is that there is no reasonable probability that the outcome of the penalty phase would have been different had the additional evidence been presented.

Case Syllabus


Concluding Observations

Here’s what I wrote after the argument:

“[This looks ] 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.

“…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. ”

I think this is an important decision, which makes it totally clear what is expected of  trial counsel in preparing and presenting a mitigation strategy. It will be interesting to see what happens at the re-sentencing. There were a number of questions at oral argument about whether the death penalty would be on the table again in the event of a remand, or whether life without the possibility of parole would be an option. At the time the prosecutor said he really hadn’t researched the issue, but thought the answer would be life-without-parole would not be an option, except in a plea bargain. The blog will follow this in its what-happened-on-remand section.

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