Bobby v. Van Hook (09-144)

November 16, 2009 Supreme Court Update

Greetings, Court fans!
The Court issued a per curiam opinion this week, Bobby v. Van Hook (09-144), where it addressed the "ineffective assistance of counsel at the sentencing phase" defense. Van Hook was convicted for murder in Ohio state court, after he lured a homosexual man home from a bar, robbed, killed, and mutilated him. After his various state appeals were denied, he filed a federal habeas petition. The district court denied all of his claims, but the Sixth Circuit reversed, finding that his confession was unconstitutionally obtained. An en banc court vacated that ruling, and on remand the panel granted Van Hook habeas relief based on the new ground that his attorneys were ineffective during the penalty phase of the trial. The en banc court again reversed, and again remanded to the panel – which held again that Van Hook had had ineffective assistance of counsel at the sentencing phase, basing its opinion on the 2003 ABA Guidelines. The State petitioned for cert, and the Court granted it.
The Court strongly disagreed that Van Hook's counsel was ineffective at the penalty phase, and took issue in particular with the Sixth Circuit's reliance on the 2003 ABA guidelines – which were not in place 15 years earlier when Van Hook's lawyers were defending him. The Court noted that the 2003 guidelines contain over 130 pages of detailed instructions for attorneys to follow in death penalty cases, including numerous instructions on what to do in preparation for the sentencing. The 1980 guidelines were far less detailed, outlining the attorney's death penalty defense role in general terms, and in just a few pages. The Court was also piqued that the Sixth Circuit treated the 2003 Guidelines not merely as evidence of what a reasonably diligent attorney would do, but "as inexorable commands with which all capital defense counsel must fully comply." The guidelines, the Court reminded the Sixth Circuit, are "only guides" to what reasonableness means, not a definition. The Court also rejected Van Hook's claim that his counsels' efforts violated standards contemporaneous with his conviction and sentencing, noting that the defense lawyers had met many times with members of his immediate family, and had presented expert witnesses and evidence of past abuse suffered by Van Hook. Investigating more deeply, or presenting the testimony of additional witnesses, was neither required under reasonable diligence standards, nor would it have helped, the Court opined. Moreover, the aggravating circumstances, including the fact that Van Hook had lured other homosexual men home and robbed them many times before this murder, tended in advance to negate any mitigating evidence.
Justice Alito concurred in a very short opinion, taking pains to emphasize that not only are the ABA guidelines not dispositive as to what is required of a reasonably diligent lawyer, but they should also not "be given a privileged position in that determination," since the ABA is a "private group with limited membership," and the advisory committee is a still smaller group, whose views are not necessarily reflective of the American bar as a whole.
The Court did not grant cert to any new cases, but did grant leave to the Solicitor General to participate in oral argument as amicus curiae in Alabama v. North Carolina (132, Orig.) and Florida v. Powell (08-1175), and invited her to file a brief expressing the views of the United States in Staub v. Proctor Hospital (09-400), a case concerning what standard courts should employ in determining whether an employer can be held liable based on the unlawful intent of officials who influenced an employment decision, but did not make that decision. The Court also denied cert or a stay of execution in Muhammad v. Kelly (09-7328), the "Washington D.C. sniper" case. While concurring in denial of cert, Justice Stevens, joined by Justice Ginsburg and Justice Sotomayer, issued a statement decrying "the perversity of executing inmates before their appeals process has been fully concluded." Normally, Muhammad's petition for cert would have been reviewed by the Court during the November 24, 2009 conference. However, Virginia scheduled the execution for November 10th, forcing the Court to "resolve the petition on an expedited basis unless [it] grant[ed] a temporary stay." Stevens would "adopt a practice of staying all executions scheduled in advance of the completion of our review of a capital defendant's first application for a federal writ of habeas corpus," to help "avoid[] irreversible error, facilitat[e] the efficient management of [the Court's] docket, and preserv[e] basic fairness by ensuring death row inmates receive the same procedural safeguards that ordinary inmates receive."
Thanks for reading.

From the Appellate Practice Group at Wiggin and Dana
For more information, contact Kim Rinehart or any other member of the Practice Group at 203-498-4400