Death Penalty

U.S. SUPREME COURT

Rompilla v. Beard, 545 U.S. 374 (2005).
The Supreme Court overturned the Third Circuit's decision in Rompilla v. Horn, 355 F.3d 233 (3d Cir. 2004) and found the Pennsylvania Supreme Court's failure to find defense counsel ineffective objectively unreasonable. Specifically, the Court held that counsel was required to review the record of the defendant's previous conviction when they had been put on notice by the prosecution that the prior record was going to be introduced as aggravating evidence during sentencing. Rompilla, 545 U.S. at 377

In discussing the obligations of defense counsel as they were understood at the time of Rompilla's trial, the opinion emphasizes that counsel is required to review material that the state will use against the defendant, id. at 375, and discusses the ABA Guidelines in detail:
In 1989, shortly after Rompilla's trial, the ABA promulgated a set of Guidelines specifically devoted to setting forth the obligations of defense counsel in death penalty cases. Those Guidelines applied the clear requirements for investigation set forth in the earlier Standards to death penalty cases and imposed a similarly forceful directive: "Counsel should make efforts to secure information in the possession of the prosecution or law enforcement authorities, including police reports." Guideline 11.4.1.D.4. When the United States argues that Rompilla's defense counsel complied with these Guidelines, it focuses its attentions on a different Guideline, 11.4.1.D.2. Brief for United States as Amicus Curiae 20-21. Guideline 11.4.1.D.2 concerns practices for working with the defendant and potential witnesses, and the United States contends that it imposes no requirement to obtain any one particular type of record or information. Id. But this argument ignores the subsequent Guideline quoted above, which is in fact reprinted in the appendix to the United States' brief, that requires counsel to " 'make efforts to secure information in the possession of the prosecution or law enforcement authorities.' "
Later, and current, ABA Guidelines (2003) [10.7] relating to death penalty defense are even more explicit:
"Counsel must ... investigate prior convictions ... that could be used as aggravating circumstances or otherwise come into evidence. If a prior conviction is legally flawed, counsel should seek to have it set aside. Counsel may also find extenuating circumstances that can be offered to lessen the weight of a conviction."
Our decision in Wiggins made precisely the same point in citing the earlier 1989 ABA Guidelines. 539 U.S. at 524 ("The ABA Guidelines provide that investigations into mitigating evidence 'should comprise efforts to discover all reasonably available mitigating evidence and evidence to rebut any aggravating evidence that may be introduced by the prosecutor.'" For reasons given in the text, no such further investigation was needed to point to the reasonable duty to look in the file in question here.

Rompilla, 545 U.S. at 387, n.7.


Florida v. Nixon, 543 U.S. 175 (Dec. 13, 2004).
The Supreme Court held that trial counsel's failure to obtain the defendant's express consent to a strategy of conceding guilt in a capital trial does not automatically render counsel's performance ineffective. The Court noted that counsel's effectiveness must be evaluated under Strickland v. Washington's standard: whether "counsel's representation 'fell below an objective standard of reasonableness'." 543 U.S. at 178, citing Strickland v. Washington, 466 U.S. 668, 688 (1984). Justice Ginsburg's decision notes that, under the facts of this particular case, "the gravity of the potential sentence in a capital trial and the proceeding's two phase structure vitally affect counsel's strategic calculus…. In such cases, 'avoiding execution [may be] the best and only realistic result possible." Nixon, 543 U.S. at 191 (citing the 2003 ABA Guidelines for the Appointment and Performance of Counsel in Death Penalty Cases § 10.9.1, Commentary). The Court further cites the Guidelines to support the premise that "pleading guilty without a guarantee that the prosecution will recommend a life sentence holds little if any benefit for the defendant." Id. at 191 n.6.



FEDERAL COURTS

Harris v. McCann, No. 07 C 0454, 2008 U.S. Dist. LEXIS 44382 (N.D. Ill. Jun. 5, 2008).
Petitioner filed a habeas petition for ineffective assistance of counsel. The court cited the 2003 ABA Guidelines for the Appointment and Performance of Defense Counsel in Death Penalty Cases as the standard by which to judge counsel's performance. The court found that counsel's failure to investigate and present mitigating evidence at the penalty phase of the trial was not a strategic choice but rather evidence of inadequate preparation. The court granted petitioner an evidentiary hearing regarding the investigation and presentation of mitigating evidence during the penalty phase.

Brinkley v. Houk, No. 4:06cv1101, 2008 U.S. Dist. LEXIS 41371 (N.D. Ohio May 22, 2008).
Petitioner filed a motion to gain access to work product of the Ohio Public Defender in order to prove that he had ineffective assistance of counsel at trial. Petitioner invokes 1989 ABA Guideline 11.4.1 and 2003 ABA Guideline 10.7 to assert that counsel failed to investigate and present mitigating evidence of petitioner's mental state. Counsel did not fully investigate or present expert testimony that concluded petitioner suffered from childhood trauma, Narcissistic Personality Disorder, as well as alcohol and cocaine dependence. Additionally, petitioner argues that counsel did not follow the standard in 2003 ABA Guidelines 1.1, 4.1, 10.4, 10.7, and 10.11 because counsel's failed to investigate and present mitigating evidence about mental retardation, brain damage, and a troubled social history. The court granted petitioner's motion for access to the work product.

Jackson v. Houk, NO: 3:07CV0400, 2008 U.S. Dist. LEXIS 36061 (N.D. Ohio May 1, 2008).
Petitioner argues that he was denied effective relief because trial counsel failed to investigate and present evidence about his childhood, did not interview or present evidence from petitioner's aunts or mother, and did not present evidence from the neuro-psychologist. Petitioner also argues that counsel failed to obtain expert assistance to aid in the investigation and presentation of this mitigating information. The court notes that the Sixth Circuit has adopted the 2003 ABA Guidelines for the Appointment and Performance of Defense Counsel in Death Penalty Cases. It cites to guideline 10.7 to acknowledge that counsel has an obligation to investigate and present mitigating evidence during both the guilt and penalty phases of trial. However, counsel is not required to present the material if they have made a thorough investigation and do not present the material for strategic reasons. The court found that because counsel (1) requested appointment of a neuro-psychologist to evaluate petitioner, (2) petitioner was evaluated by the neuro-psychologist, (3) ordered records from county child services and Ohio youth services, (4) interviewed petitioner's older half brother, (5) requested the services of a ballistics/forensic scientist and (6) had two mitigation specialists working on the case, counsel adequately investigated and presented mitigating evidence.

Sowell v. Collins, No. 1:94CV237, 2008 U.S. Dist. LEXIS 25643 (S.D. Ohio Mar. 31, 2008).
Sowell was tried and sentenced to death before a three-judge panel. Sowell appealed to the District Court for the Southern District of Ohio seeking federal habeas corpus relief. Sowell argued that his counsel was ineffective for failing to present an adequate mitigation investigation into his background and childhood.
The District court cited to the Supreme Court's practice of referring to the "standards of the American Bar Association ("ABA") as guides to determining what is reasonable representation in a capital case." 2008 U.S. Dist. LEXIS at *53. The District court specifically addressed Wiggins v. Smith:

The ABA Guidelines provide that investigations into mitigating evidence 'should comprise efforts to discover all reasonably available mitigating evidence and evidence to rebut any aggravating evidence that may be introduced by the prosecutor.' ABA Guidelines for the Appointment and Performance of Counsel in Death Penalty Cases 11.4.1(C), p. 93 (1989) (emphasis added). Despite these well-defined norms, however, counsel abandoned their investigation of petitioner's background after having acquired only rudimentary knowledge of his history from a narrow set of sources. Wiggins v. Smith, 539 U.S. 510, 523 (2003).

Sowell, 2008 U.S. Dist. LEXIS at *54-55. Similar to Wiggins, Sowell's defense counsel failed to present an investigation into his childhood:

Despite the fact that petitioner grew up in extreme poverty and suffered severe abuse and neglect as a child, counsel did not present any information concerning petitioner's childhood, background, or social history. Counsel did not call one family member to testify. The panel did not hear that petitioner was one of seven children, and the Sowell family was so poor that the children were malnourished and routinely had nothing to eat. The panel did not hear that petitioner began stealing food at a young age, and his infant brother died of starvation. The panel did not hear that petitioner had no shoes until he was five years old, and that he and his siblings were often bitten by rats.

Id. at *11-12. Citing to the 2003 ABA Guideline 10.7 in Hamblin v. Mitchell, the District court continued:

The 2003 ABA guidelines state that "penalty phase preparation requires extensive and generally unparalleled investigation into personal and family history." Id. at 487 n.2. The guidelines further provide that counsel need to explore family and social history, including physical, sexual or emotional abuse, and family history of mental illness, cognitive impairments, substance abuse or domestic violence, as well as poverty and familial instability. Id.

Id. at *55. The District court identified defense counsel failures as constituting ineffective assistance. "[Sowell's] counsel performed deficiently by failing to discover, develop or present substantial mitigating evidence concerning petitioner's background and social history." Id. at *53. The court concluded, "…there is a reasonable probability that had counsel done so, at least one member of the three-judge panel would have voted against the imposition of the death penalty." Id. As a result, Sowell was granted federal habeas relief on his ineffective assistance of counsel claim.


Yarbrough v. Johnson, 520 F.3d 329 (4th Cir. Mar 17. 2008).
On appeal to the 4th Circuit, Yarbrough argued his trial counsel was ineffective for failing to hire a DNA expert to contradict the evidence that was used against him. The state's case relied heavily on the DNA evidence at the crime scene and Yarbrough argued that his counsel's failure to rebut any of this evidence "fell below 'prevailing professional norms' as they are defined by the (2003) American Bar Association's Guidelines for the Appointment and Performance of Defense Counsel in Death Penalty Cases ("ABA Guidelines")." 2008 U.S. App. LEXIS at *12. Yarbrough asserts that the ABA Guidelines "require that 'expert assistance should always be requested and provided' for the 'proper preparation of capital cases' (emphasis added), and which are not to be taken as 'aspirational' but as a minimum standard under the Sixth Amendment." Id.

The District Court rejected this argument and the 4th Circuit agreed that the "failure to comply with the ABA Guidelines regarding the requesting of funds for expert assistance does not establish counsel's performance as constitutionally deficient per se." Id. at *22.

The 4th Circuit analyzed the language of the ABA Guidelines and determined that the Guidelines give a "mixed message about whether they are aspirational or mandatory in every circumstance." Id. The court continues:

On the one hand they would impose on defense counsel a mandatory, nonaspirational, minimum requirement to request public funds and obtain expert assistance in the preparation of virtually every capital case, because everywhere that the Guidelines direct what counsel "should" do, they advise that the term "should" is to be construed as a mandatory term. See ABA Guidelines intro. (1989) ("'Should' is used throughout as a mandatory term and refers to activities which are minimum requirements"). In this manner, the ABA Guidelines appear to mandate that "[u]tilization of experts has become the rule, rather than the exception, in proper preparation of capital cases," id. 1.1 cmt., and "counsel should demand on behalf of the client all necessary experts for preparation of both phases of trial," id. 11.4.1 cmt. On the other hand, the Guidelines also seem to acknowledge that a defendant cannot routinely have experts, because to have them requires calling upon local jurisdictions "to authorize sufficient funds to enable counsel in capital cases to conduct a thorough investigation . . . and to procure the necessary expert witnesses and documentary evidence," id. 8.1 cmt., which suggests an aspirational nature to the Guidelines. The Guidelines observe that "funds available to appointed defense counsel are substantially below those available to the prosecution" and that "[t]his inequity is unconscionable." Id. In short, the ABA Guidelines say that defense counsel should -- now meaning only "should" -- try to use experts more routinely, but that this goal depends on government funding which, for now, does not allow this goal to be achieved routinely.

Id. at *22-23. The court concluded that the "ABA Guidelines provide noble standards for legal representation in capital cases and are intended to improve that representation, they nevertheless can only be considered as a part of the overall calculus of whether counsel's representation falls below an objective standard of reasonableness; they still serve only as "guides," Strickland, 466 U.S. at 688, not minimum constitutional standards." Id. at *26.


Moore v. Mitchell, 531 F. Supp. 2d 845 (S.D. Ohio Jan. 18, 2008).
Moore appealed a supplemental petition for writ of habeas corpus to the District Court for the Southern District of Ohio. Among Moore's twenty-five claims for relief, the District Court analyzed whether trial counsel rendered ineffective assistance of counsel. Moore claimed trial counsel employed a mitigation specialist who failed to discuss substantive mitigation issues with Moore and failed to adequately assist in the preparation of the mitigation phase. Id. at *33.

In the Report and Recommendations of the District Court, the Chief Judge Magistrate addressed this issue and stated, "neither the Constitution nor the ABA Guidelines for the Appointment and Performance of Counsel in Death Penalty Cases (2003) ("ABA Death Penalty Guidelines") guarantee or mandate the right to an "effective mitigation specialist." Id. at *35. Moore appealed this finding citing to ABA Guidelines 4.1(A)(1) ("The defense team should consist of no fewer than two attorneys qualified in accordance with Guideline 5.1, an investigator, and a mitigation specialist."); and Guideline 10.4(C)(2) (requiring lead attorneys to retain a mitigation specialist as soon a possible after being designated as counsel). Id. The District Court ultimately found that although trial counsel may have been ". . . deficient in failing to obtain the services of an effective mitigation specialist, the subclaim would nonetheless fail…" Id. Moore failed to establish prejudice under the Strickland standard and was therefore unsuccessful on this claim.


Fauntenberry v. Mitchell, 515 F.3d 614 (6th Cir. Jan. 25, 2008) (Moore, J., dissenting).
The Sixth Circuit affirmed the Southern District of Ohio's denial of Fauntenberry's petition for writ of habeas corpus. Although Fauntenberry's trial counsel failed to present significant mitigating evidence pertaining to Fauntenberry's potential brain damage and failed to properly utilize the defense expert witness, the Sixth Circuit found that defense counsel's actions did not constitute ineffective assistance of counsel.

In the dissenting opinion, Judge Moore wrote that she did not agree with the majority's conclusion that Fauntenberry had failed to establish ineffective assistance of counsel. Judge Moore opined that although a "reasonable diligent attorney" may conclude when further investigation would be a waste, it is the attorney's "constitutional duty" to thoroughly investigate the defendant's background. Id. at **23. Judge Moore also noted that the fact that the defendant can be sentenced to death "magnifies counsel's responsibility to investigate." Id.; GUIDELINES FOR THE APPOINTMENT AND PERFORMANCE OF DEFENSE COUNSEL IN DEATH PENALTY CASES, Guideline 10.7 Commentary (Am. Bar Ass'n, Rev. Ed. 2003) ("2003 GUIDELINES")." Id.

The State argued that Fauntenberry's refusal to cooperate with defense attorneys and the defense expert witness precludes his claim that he received ineffective representation. Id. at **27. Citing to section 10.7(A)(2) of the ABA Guidelines, Judge Moore identified that the Guidelines "specifically state that mitigating evidence must be pursued regardless of any statement by the client that evidence bearing upon penalty is not to be collected or presented." Id. at **27-8. The fact that Fauntenberry did not make investigation easy for counsel, does not excuse counsel from failing to investigate mitigating evidence. Judge Moore wrote:

. . . the ABA demands that defense counsel go beyond the barriers that their client may erect. The ABA even recognizes that when pursuing mitigating evidence, "[o]btaining such information typically requires overcoming considerable barriers, such as shame, denial, and repression, as well as other mental or emotional impairments from which the client may suffer." 2003 GUIDELINES, 10.7 commentary. While the ABA recognizes the challenges that defense counsel may face and exhorts counsel to continue pursuing mitigating evidence in the face of those challenges, the majority condones a half-hearted effort.

Id. at **28. Judge Moore found defense counsel had significant "red flags" to fully investigate Fauntenberry's medical history and because they failed to do so, she dissented.


Jalowiec v. Bradshaw, No. 1:03-CV-0645, 2008 U.S. Dist. LEXIS 18855 (N.D. Ohio Jan. 31, 2008).
Jalowiec appealed pro se his amended petition for writ of habeas corpus to the District Court for the Northern District of Ohio. Among Jalowiec's forty-six claims for relief, Jalowiec claimed his counsel was ineffective for failing to fully investigate and "gather documentary evidence related to his history, background, and character and by failing to hire a qualified psychologist to examine him. . ." 2008 U.S. Dist. LEXIS at *248.

The Ohio District Court cited to Rompilla, Wiggins, and the 2003 ABA Guidelines for the Appointment and Performance of Defense Counsel in Death Penalty Cases to evaluate whether Jalowiec's counsel acted ineffectively. Id. at 250. The court stated:

The ABA Guidelines provide that penalty phase preparation requires extensive investigation into personal and family history, and anything in the life of the defendant which might mitigate against the appropriateness of the death penalty. The investigation should begin with the moment of conception and should include medical history, family and social history, educational history and employment and training history. According to the ABA Guidelines, it is necessary to locate and interview the defendant's family members and virtually anyone else who knew the defendant and his family, including neighbors, teachers, clergy, case workers, doctors, correctional, probation, or parole officers and others. Also, records from government agencies, the military and employers should be requested. ABA Guidelines for the Appointment and Performance of Defense Counsel in Death Penalty Cases P 10.7 (2003), pgs. 80-83.

Id. at *250-51. In this case, counsel's investigation may not have been as thorough as the ABA Guidelines suggest, however, "Jalowiec must [also] show that his counsels' ineffective assistance constitutes prejudice." Id. at *255-56. The court concluded that the introduction of additional mitigation evidence was, ". . . just as likely, if not more likely, to be viewed by the jury in a negative manner and not of any assistance or evidence of mitigation." Id. at *257. The court ruled Jalowiec's claim was without merit. Id.


Meyer v. Branker, 506 F.3d 358 (4th Cir. Nov. 13, 2007).
Petitioner challenged his capital sentence raising claims relating to the effectiveness of his counsel. Specifically, Petitioner contended that the failure of his sentencing attorney to present mental health mitigation testimony constituted ineffective assistance of counsel. The lower court cited to the (2003) ABA Guidelines, noting that mental health evidence is extremely important to capital sentencing juries and defense counsel therefore "should consider" including it at trial. ABA Guideline 10.11.F.2. Based upon this, Petitioner argued that reasonably competent attorney performance demands the presentation of available mental health mitigation evidence at trial, absent some "weighty tactical advantage" to be gained by its withholding. Since no such "weighty advantage" was present in this case, petitioner concluded that counsel's failure to present mental health mitigation testimony constituted ineffective assistance of counsel.

The court rejected this argument, holding that Petitioner was unable to satisfy either the "performance" or the "prejudice" prong of the Supreme Court's Strickland test. Strickland v. Washington, 466 U.S. 668 (1984). In addition, the court noted that although the ABA Guidelines, which emphasize the importance of mental health mitigation evidence, may be of some relevance in determining what constitutes reasonable performance in a capital trial, they certainly cannot be dispositive in and of themselves, See Rompilla v. Beard, 545 U.S. 374 (2005). No per se rule requires the presentment of such evidence at trial.


Jackson v. Bradshaw, No. 2:03-cv-983, 2007 U.S. Dist. LEXIS 75523 (S.D. Ohio Sept. 28, 2007).
Petitioner, a prisoner sentenced to death by the State of Ohio, filed a habeas corpus action under 28 U.S.C. § 2254. In support of his position, Petitioner argued that defense counsel failed to adequately investigate his psychological background and failed to present psychological evidence. Specifically, Petitioner contended that as a result of counsel's deficient performance, the trier of fact never heard a comprehensive evaluation of his psychological functioning. He further argued that because of counsel's deficient performance, the prosecution essentially was able to assert that Petitioner had a normal childhood when, in fact, it was fraught with domestic violence, drug abuse, and instability in his life. Petitioner explained that, under Wiggins v. Smith, 539 U.S. 510 (2003), prejudice from counsel's unreasonable failure to investigate and present psychological evidence is assessed by reweighing the evidence in aggravation against the totality of available mitigating evidence to determine whether there is a reasonable probability that at least one juror would have struck a different balance. Id. at 534-35, 537

The court, in response to Petitioner's argument, recognized that the ABA Guidelines articulating standards for capital defense work--"standards to which we long have referred as 'guides to determining what is reasonable,'" Wiggins, 539 U.S. at 524--emphasize the importance of testimony by a psychologist or mental health expert at the mitigation phase of death penalty cases. See Clark v. Mitchell, 425 F.3d at 294 (Merritt, J., dissenting) ("the defendant's psychological and social history and his emotional and mental health are often of vital importance to the jury's decision at the punishment phase." (quoting Commentary to § 4.1 of the 2003 ABA Guidelines)). However, contrary to Petitioner's argument, the court concluded that counsel does not have an absolute duty to present the testimony of a psychologist at the mitigation hearing. Cf. Carter v. Mitchell, 443 F.3d 517, 527 (6th Cir. 2006) ("Counsel does not perform unreasonably merely by not ruling out every possible psychological mitigator through specialized evaluations"), cert. denied, 127 S.Ct. 955 (2007) (citing Lundgren v. Mitchell, 440 F.3d 754, 772 (6th Cir. 2006)).


Clark v. Quarterman, No. 2:03cv357, 2007 U.S. Dist. LEXIS 68249 (E.D. Tex. Sept. 14, 2007).
The District Court for the Eastern District of Texas reversed the decision of the Texas Court of Criminal Appeals, holding that petitioner did in fact show that his trial counsel was ineffective for failing to interview Petitioner's mother.

Petitioner, an inmate convicted of capital murder and sentenced to death, filed a motion for habeas corpus pursuant to 28 U.S.C. § 2254 in the Eastern District of Texas. Petitioner argued that defense counsel failed to investigate or present evidence which would have mitigated against the imposition of the death penalty. Specifically, Petitioner claims that counsel failed to investigate his family background or his social, medical and mental history.

The District Court cited a well-established precedent, that to prove ineffective assistance of counsel, a criminal defendant must show that his attorney's assistance was deficient and that the deficiency prejudiced him. Strickland v. Washington, 466 U.S. 668, 687 (1984). To establish deficient performance, a petitioner must demonstrate that counsel's representation fell below an objective standard or reasonableness. Id. at 688. To determine what is reasonable, the district court looked to the (2003 and 1989) ABA Guidelines. See Wiggins v. Smith, 539 U.S. 510, 524 (2003). Specifically, the court referred to ABA Guideline 11.8.6 which states that counsel should consider presenting information on medical history, educational history, and family and social history. Id. (emphasis in original). Petitioner's defense counsel admittedly failed to consider this potentially mitigating evidence. Thus, the court was persuaded that Petitioner's counsel fell "far short of professional norms when they failed to investigate his background, [especially since] counsel's affidavit indicates that there was no strategy behind the decision to forego an investigation of or to present evidence or Petitioner's childhood." Clark v. Quarterman, 2007 U.S. Dist. LEXIS 68249 *6.

The district court held that defense counsel was ineffective for failing to interview Petitioner's parents, despite arguments that Petitioner himself blocked counsel from conducting the interviews. However, the fact that Petitioner insisted his parents not be called to testify at the punishment phase does not excuse counsel's duty to investigate possible mitigating evidence. The 2003 ABA Guideline 10.7 expressly states that "[t]he duty to investigate [mitigating evidence] exists regardless of the expressed desires of a client."




Murphy v. Sirmons, 497 F. Supp. 2d 1257 (E.D. Okla. Aug. 1, 2007).
Petitioner was convicted of first degree murder and sentenced to death. Petitioner now seeks relief from his death sentence pursuant to 28 U.S.C §2254. Among other arguments, Petitioner asserted that trial counsel was ineffective. Specifically, Petitioner argued that because counsel tried several death penalty cases in a relatively short period of time, he failed to allocate a reasonable amount of time to investigate Petitioner's life history.

In his argument, Petitioner cited the 2003 ABA Guideline 6.1 mandating that counsel spend 1800 hours on this case and since counsel tried four other death penalty cases within a space of ten calendar months, he could not have allocated a reasonable amount of time to investigate Petitioner's life. The court found, however, that the ABA Guidelines cited by Petitioner were not adopted until February 2003, roughly three years after Petitioner's trial. Further, the ABA Guidelines make it clear that many things other than the number of cases assigned to an attorney would have to be considered in ascertaining a reasonable workload for a given attorney.


Haliym v. Mitchell, 492 F.3d 680 (6th Cir. Jul. 13, 2007).
The Sixth Circuit Court of Appeals affirmed the denial of the plaintiff-prisoner's writ of habeas corpus concerning the convictions, but reversed the denial of the writ with respect to the sentences. 492 F.3d at 685. The court found that the defendant was denied effective assistance of counsel during the mitigation phase of his sentencing proceedings. Id.

In citing the (2003) ABA Guidelines, the court noted that defense counsel's performance "fell short of several of the American Bar Association's Guidelines." Id. at 716. The court stated that the Guidelines have long been considered guides to determining what reasonable conduct is for defense counsel, and specifically stated that they "explicitly recognize that competent counsel will investigate and discover all the evidence that Petitioner's counsel failed to unearth." Id. at 717. Finally, the court noted that when defense counsel presents mitigating evidence during sentencing proceedings, counsel has "an obligation to conduct thorough and independent investigations relating to the issues of both guilt and penalty." Id. (citing ABA Guideline 10.7). The court elaborated on this by commenting that investigation should include "members of the client's immediate and extended family;" but also "medical history, which includes physical injury and neurological damage; and family and social history, which includes physical . . . abuse, . . . domestic violence . . . exposure to criminal violence, [and] the loss of a loved one." Id.


Hartman v. Bagley, 492 F.3d 347 (6th Cir. Jul. 10, 2007) (Clay, J., concurring in part).
The Sixth Circuit Court of Appeals affirmed the district court's denial of petitioner's writ of habeas corpus but added three more claims to the petitioners COA.

In citing the ABA Guidelines in his concurrence, Judge Clay wrote that "trial counsel unreasonably limited his investigation, all but foreclosing consideration of three potential mitigating factors." He noted that consistent with the ABA Guidelines "[r]ecords should be requested concerning not only the client, but also his parents, grandparents, siblings, and children. A multi-generational investigation frequently discloses significant patterns of family dysfunction and may help . . . underscore the hereditary nature of a particular impairment. Hamblin v. Mitchell, 354 F.3d 482, 487 n.2, 488 (6th Cir. 2003) (quoting ABA Guidelines for the Appointment & Performance of Def. Counsel in Death Penalty Cases 10.7, at 80-83 (2003)) (citing the "2003 ABA Guidelines . . . because they are the clearest exposition of counsel's duties at the penalty phase . . ., duties that were recognized by this court as applicable to the 1982 trial of the defendant in Glenn v. Tate"). A "reasonably competent attorney" would have pursued stronger evidence of genetic alcoholism. See Wiggins, 539 U.S. at 534.


Prevatte v. Baker, 499 F. Supp. 2d 1324 (N.D. Ga. Jul. 4, 2007).
Petitioner challenges two aspects of the Court's decision to deny relief on his claim based upon the ineffective assistance of counsel: (1) that counsel's failure to seek a continuance was not objectively unreasonable, and (2) that counsel's failure to interview one of the state's witnesses was neither objectively unreasonable nor prejudicial.
Petitioner argued that "barring exceptional circumstances, counsel should seek out and interview potential witnesses, including, but not limited to ... eyewitnesses or other witnesses having purported knowledge of events surrounding the alleged offense itself." 2003 ABA Guidelines for the Appointment and Performance of Defense Counsel in Death Penalty Cases 10.7. However, the court does not find this persuasive, considering this Guideline was issued almost 20 years after Petitioner's trial. Supporting this contention the court notes, contrary to Petitioner's argument, that Supreme Court in Rompilla did not rely on the 2003 Guidelines in concluding that defense counsel conducted an inadequate investigation in 1989. Rather, in assessing the adequacy of counsel's investigation in that case, the Supreme Court relied upon the 1982 ABA Standards for Criminal Justice which were in effect at the time of Rompilla's trial. See Rompilla, 545 U.S. at 387 (quoting 1 ABA Standards for Criminal Justice 4-4.1 (2d ed. 1982 Supp.)). While the Court did make reference to later-promulgated versions of the Guidelines, the Court viewed those Guidelines as simply more explicit statements of the pronouncements contained in 1982 Guidelines. Id. at 387 n.6 (noting that the Court saw "no material difference" between the phrasing of 1982 and 1993 versions of ABA guidelines); id. at 387 n.7 (noting that 1989 version of ABA Guidelines, promulgated shortly after Rompilla's trial, "applied the clear requirements for investigation set forth in the earlier [1982] Standards of death penalty cases," and that 2003 Guidelines "are even more explicit"). "Thus, the Supreme Court in Rompilla did not rely on ABA Guidelines promulgated years after the defendant's trial to assess his attorney's performance, and the Court is not required to do so in this case."
Furthermore, the court contended that even if it were required to consider the 2003 Guidelines, it would not reconsider its prior judgment. While the Supreme Court has recognized that "[p]revailing norms of practice as reflected in American Bar Association standards and the like ... are guides to determining what is reasonable," Strickland, 466 U.S. at 688; see also Wiggins v. Smith, 539 U.S. 510, 524, 123 S. Ct. 2527, 156 L. Ed. 2d 471 (2003) (finding that trial counsel's conduct "fell short" of the standards set forth in the ABA Guidelines), the Supreme Court has emphasized that they are only guides.


Anderson v. Sirmons, 476 F.3d 1131 (10th Cir. Feb. 21, 2007).
The Tenth Circuit Court of Appeals reversed the district court's denial of habeas relief as to the defendant's sentencing and was remanded to the district court with instructions to issue a writ of habeas corpus. The court found that defense counsel's failure to investigate or discover readily available mitigation evidence regarding the defendant's family history and mental health amounted to constitutionally deficient performance. In addition, the court also found that defense counsel's conduct prejudiced the proceedings, as it left the motive for the murders unanswered.

In citing to 1989 ABA Guideline 11.4.1(C) and 2003 ABA Guideline 10.7(A), the court noted that investigation into mitigating evidence involves discovering "all reasonably available mitigating evidence and evidence to rebut any aggravating evidence that may be introduced by the prosecutor." Anderson, 476 F.3d at 1142 (citing ABA Guideline 11.4.1(C)). The court declared that evidence relating to the defendant's mental health history and family life represented "just the kind of mitigation evidence trial counsel is obligated to investigate and develop as part of building an effective case in mitigation during the penalty phase of the trial." Id. at 1144.


Shelton v. Carroll, 464 F.3d 423 (3d Cir. Sept. 28, 2006).
Shelton appealed to the Third Circuit seeking federal habeas corpus relief. Shelton argued that his counsel was ineffective for failing to present an adequate mitigation investigation into his background and childhood. The Court noted 11.4.1 of the 1989 Guidelines:

A. Counsel should conduct independent investigations relating to the guilt/innocence phase and to the penalty phase of a capital trial. Both investigations should begin immediately upon counsel's entry into the case and should be pursued expeditiously.
. . . .
C. The investigation for preparation of the sentencing phase should be conducted regardless of any initial assertion by the client that mitigation is not to be offered. This investigation should comprise efforts to discover all reasonably available mitigating evidence and evidence to rebut any aggravating evidence that may be introduced by the prosecutor.

and the commentary to current Guideline 10.7:

This Guideline is based on portions of Guideline 11.4.1 of the original edition. Changes in this Guideline [not applicable to trial counsel's performance in this case] clarify that counsel should conduct thorough and independent investigations relating to both guilt and penalty issues regardless of overwhelming evidence of guilt, client statements concerning the facts of the alleged crime, or client statements that counsel should refrain from collecting or presenting evidence bearing upon guilt or penalty.

American Bar Association Guidelines for the Appointment and Performance of Counsel in Death Penalty Cases 10.7 (2003).

Ultimately, however, the Court decided that "it was Shelton, not his attorney, who decided to limit the scope of the investigation and the presentation of mitigating evidence to the jury" and denied Shelton's' claim for habeas relief on that basis.


Dickerson v. Bagley, 453 F.3d 690 (6th Cir. Jul. 7, 2006).
The Sixth Circuit granted Dickerson a new penalty phase, finding that trial counsel was ineffective for failing to conduct a proper investigation into available mitigation evidence. Citing the 1989 and 2003 ABA Guidelines, the court noted that "the Supreme Court, in the last three years, in two different death penalty ineffective assistance of counsel cases, has made it clear and come down hard on the point that a thorough and complete mitigation investigation is absolutely necessary in capital cases." Dickerson, 453 F.3d at 691. In applying Guideline 10.7 (2003), the court noted that "the ABA Guidelines…create the required standards of performance for counsel in capital cases regarding the investigation of mitigating circumstances" and found that Dickerson's counsel fell "far short" of meeting the applicable standards. Id. at 692. In particular, the Sixth Circuit found that there was no explanation for counsel not conducting "any mitigation investigation of facts concerning Dickerson's medical history, family and social history, educational history, or any of the other factors listed in the ABA Guidelines." Id. at 693.


Lundgren v. Mitchell, 440 F.3d 754 (6th Cir. Mar. 13, 2006) (Clay, J., majority/Merritt, J., dissenting).
The Sixth Circuit affirmed Lundgren's conviction and sentence, stating that defense's failure to present an insanity plea did not constitute ineffective assistance of counsel. In this case, both the majority and the dissent cited the ABA Guidelines.

The majority cites to Wiggins and the ABA Guidelines in the context of discussing the reasonableness of counsel's decision: "More recent ABA Guidelines, which the United States Supreme Court has recognized as reflecting prevailing professional norms, emphasize that "investigations into mitigating evidence 'should comprise efforts to discover all reasonably available mitigating evidence and evidence to rebut any aggravating evidence that may be introduced by the prosecutor.'" Wiggins, 539 U.S. at 524, 123 S.Ct. 2527 (quoting ABA Guidelines for the Appointment and Performance of Counsel in Death Penalty Cases § 11.4.1(C), p. 93 (1989) and adding emphasis)." 440 F. 3d at 771.

The lengthy dissent cites both the 1989 and the 2003 ABA Guidelines in finding that the failure of Lundgren's counsel to present the insanity defense was "manifestly ineffective." Judge Gilbert Merritt's dissent quotes Hamblin v. Mitchell, 354 F. 3d 482, 487 (6th Cir. 2003), for the principle that the 2003 Guidelines "merely represent a codification of longstanding, common-sense principles of representation understood by diligent, competent counsel in death penalty cases." 440 F. 3d at 797. The dissent in Lundgren also went on to cite the Commentary to the 1989 and 2003 Guidelines: "The 2003 ABA Guidelines similarly counsel attorneys to 'consider all legal claims potentially available,' to 'thoroughly investigate the basis for each potential claim,' and to 'be significantly more vigilant about litigating all potential issues at all levels in a capital case than in any other case." ABA Guidelines 10.8(1) (2), p. 86 (2003); id. at 10.8, commentary, p. 89." 440 F. 3d at 797.


Clark v. Mitchell, 425 F.3d 270 (6th Cir. Oct 4, 2005) (Rogers, J., majority/Merritt, J., dissenting).
The Sixth Circuit affirmed Clark's conviction and sentence, holding that the defense failure to call a neuroscientist or pharmacologist to present mitigating evidence during sentencing did not constitute ineffective assistance of counsel. Clark argued that such testimony would have established the existence of organic brain damage. Defense counsel, however, relied upon the report of the retained psychologist, which did not indicate that such brain damage was a potential factor and did not recommend any further medical testing. The Court held that defense counsel was not ineffective for relying on the opinion of the expert psychologist. Id. at 286. The opinion made note of the fact that by employing a defense psychologist to conduct an independent evaluation, defense counsel was acting in conformity with 2003 ABA Guideline 4.1. Id. at n. 5.

In dissent, Circuit Judge Merritt argued that the necessity of further medical testing was indicated in the psychologist's report, in language simply ignored by the majority. The opinion cites to the 1989 ABA Guideline 11.4.1 (C) for the proposition that the defense must not rely on the counsel's own observations and beliefs regarding the defendant's symptoms but rather investigate the defendant's medical and educational history. The court then notes 2003 ABA Guideline 10.7 which further describes the necessity of a mental health investigation. Id. at 291, n.1. Merritt goes on to argue that the majority simply flouts the holdings of Wiggins v. Smith, 539 U.S. 510 (2003) and Rompilla v. Beard, 545 U.S. 347 (2005), which recognize the ABA Guidelines as the normative standards for defense counsel; the opinion emphasizes the duty as articulated in the 1989 edition of the Guidelines to provide for neurological testing in appropriate circumstances. Id. at 293-94.

United States v. Kreutzer, 61 M.J. 293 (C.A.A.F. Aug. 16, 2005).
The United States Court of Appeals for the Armed Forces affirmed the decision to set aside a conviction of premeditated capital murder on the basis that the general court-martial erred in refusing to appoint a mitigation specialist to the capital defense team. The Court cites to ABA Guidelines (2003) during its discussion of the role of the mitigation specialist, noting that such an investigator is referred to as a "core member" of the defense team. Id. at *9. The Court further noted that "[a]s the Commentary to ABA Death Penalty Counsel Guideline 4.1 states, the mitigation specialist is an 'indispensable member of the defense team throughout all capital proceedings.'"


Crowe v. Terry, 426 F. Supp. 2d 1310 (N.D. Ga. 2005).
In denying Crowe's petition for writ of habeas corpus, the District Court ruled that defendant counsel's performance was not inadequate. In support of Crowe's claim of ineffective assistance, Crowe pointed to his attorney's failure to interview and challenge the designation of experts used by the prosecution. Crowe, 426 F.Supp.2d at 1317. In making this argument, Crowe pointed to the ABA Guidelines, which state that trial counsel must be experienced in the utilization of expert witnesses. The court, addressing the argument, cited the 2003 ABA Guidelines: "The guidelines state that trial counsel 'must be experienced in the utilization of expert witnesses and evidence, such as psychiatric and forensic evidence, and must be able to challenge zealously the prosecution's evidence and experts through effective cross-examination.' American Bar Association Guidelines for the Appointment and Performance of Defense Counsel in Death Penalty Cases, Introduction (2003)." Id. The court further stated that whether or not counsel's cross-examination was "effective" must be decided on a case-by-case basis and concluded that the counsel's assistance in this instance was not ineffective.


United States v. Karake, 370 F. Supp. 2d 275 (D.D.C. May 19, 2005).
The District Court, in deciding what evidence a defendant is entitled to in discovery regarding the aggravating factors enumerated in a death penalty notice, utilized the ABA Guidelines as guiding principles in determining how broad in scope the discovery should be. Recognizing that the government would use the aggravating factors in the potential penalty phase of the trial, the court cited the ABA Guidelines governing the investigatory duties of counsel with respect to the penalty phase of a capital trial. Karake, 370 F.Supp2d at 278. Citing Guideline 11.4.1(C)(1989), the court stated that counsel must "discover all reasonably available mitigating evidence and evidence to rebut any aggravating evidence that may be introduced by the prosecutor." Id. Additionally, the court noted Guideline 10.11(A) (2003), which states that counsel must "seek information that … rebuts the prosecution's case in aggravation" and Guideline 10.11(H)(2003) which requires counsel to "determine at the earliest possible time what aggravating factors the prosecution will rely upon in seeking the death penalty and what evidence will be offered in support thereof." Id. The court noted that these Guidelines are "fundamental principles" and looking to them would "assist the government in its assessment of whether and how to narrow the scope of any amended death penalty notice." While the court did not formally determine what discovery would be granted regarding the aggravating factors, it did set out what principles should be followed by the government regarding discovery of the aggravating factors.


Canaan v. McBride, 395 F.3d 376 (7th Cir. Jan. 11, 2005).
The Seventh Circuit held that defense counsel rendered ineffective assistance when it failed to advise a client on trial for capital murder that he was entitled to testify at the penalty phase. The court "follow[ed] the [Supreme] Court's lead in Strickland and Wiggins by looking first to the ABA Standards for Criminal Justice and the ABA Guidelines for the Appointment and Performance of Defense Counsel in Death Penalty Cases" to assess whether counsel's performance was reasonable under prevailing professional norms. 395 F.3d at 384. The court found that "Canaan's counsel fell short of professional norms" under the ABA Guideline standards:

Under the heading 'The Defense Case Concerning Penalty,' the ABA Guidelines provide that 'counsel should consider, and discuss with the client, the possible consequences of having the client testify or make a statement to the sentencing or reviewing body or individual.' ABA Guidelines for the Appointment and Performance of Defense Counsel in Death Penalty Cases Guideline 10.11 (2003) (emphasis added).

Id. at 384-85. The court further stated, "The ABA's Commentary to Guideline 10.11 reiterates this standard: 'Counsel should also consider, in consultation with the client, the possibility of the client expressing remorse for the crime in testimony, in allocution, or in a post-trial statement.' Id. Guideline 10.11 cmt." Id. at 385.

The court affirmed the "district court's grant of habeas corpus relief to Canaan with respect to his ineffective assistance of counsel claim…" Id. at 387.


Hartman v. Bagley, 333 F. Supp. 2d 632 (N.D. Ohio Aug. 31, 2004).
Although they failed to find ineffectiveness in this case, the District Court began its discussion of Hartman's ineffective assistance of counsel claim by recognizing that in Wiggins, "the Supreme Court found that the American Bar Association's standards for counsel in death penalty cases provide the guiding standards to be used in defining the prevailing norms for capital cases." Id. at 672 (citing Wiggins v. Smith, 539 U.S. 510, 522). "The Sixth Circuit has recently addressed the Wiggins case and concluded that the 'Wiggins case now stands for the proposition that the ABA standards for counsel in death penalty cases provide the guiding rules and standards to be used in defining the prevailing professional norms in ineffective assistance case.'" Id. (quoting Hamblin v. Mitchell, 354 F.3d 482 at 486). The court refers to the 2003 ABA Guideline 10.11 and states that defense's mitigation evidence only covered 41 pages of transcript. The court went on to find that "[t]rial counsel's mitigation presentation was not exemplary and in certain respects may have fallen short of the ABA's standards." Id.


Cone v. Bell, 359 F.3d 785 (6th Cir. Mar. 1, 2004) (Merritt, J., concurring) rev'd sub nom, Bell v. Cone, 543 U.S. 447 (2005).
The Sixth Circuit granted a new penalty phase proceeding to Cone on the grounds that one of the aggravating factors found by the jury--that the crime was "especially heinous, atrocious or cruel"--was unconstitutionally vague. The majority found that Cone had not procedurally defaulted on his Eighth Amendment claim because the State Supreme Court implicitly ruled on it.

In his concurring opinion, Judge Merritt argued that even had Cone procedurally defaulted on the claim, his attorney's failure to raise the issue and preserve it for review constituted ineffective assistance of counsel. Judge Merritt highlighted trial counsel's failure to object to the aggravator despite a recent Supreme Court decision invalidating similar language and found support for his opinion in the 2003 ABA Guidelines, particularly 10.8:

This conclusion is further supported by the American Bar Association's Guidelines for the Appointment and Performance of Defense Counsel in Death Penalty Cases. As pointed out in Strickland, "[t]he proper measure of attorney performance remains simply reasonableness under prevailing professional norms." 466 U.S. at 688, 104 S.Ct. 2052. American Bar Association standards are only "guides" and not "rules" for what constitutes ineffective assistance of counsel, id., but in this case the guidelines speak clearly:
One of the most fundamental duties of an attorney defending a capital case at trial is the preservation of any and all conceivable errors for each stage of appellate and post-conviction review. Failure to preserve an issue may result in the client being executed even though reversible error occurred at trial. For this reason, trial counsel in a death penalty case must be especially aware not only of strategies for winning at trial, but also of the heightened need to fully preserve all potential issues for later review. ABA Guidelines for the Appointment and Performance of Defense Counsel in Death Penalty Cases 91-92 (rev. ed.2003) (internal quotations omitted).
In this case, not only did Cone's counsel fail to preserve "any and all" errors, he failed to preserve a claim based on binding Supreme Court precedent that was a sure winner as a matter of federal law and that, given the role of the "heinous, atrocious, and cruel" aggravator in the jury's deliberation of the death sentence, may well have saved his client's life. There can be no doubt that this error was "sufficiently egregious and prejudicial" to constitute cause for the procedural default of that claim."
359 F.3d at 803-04. Judge Merritt also pointed out that, although the 2003 edition of the Guidelines had not been published at the time of Cone's trial, his citation to them was appropriate because they are "an articulation of long-established 'fundamental' duties of trial counsel." Id. at 804 n.2 (internal citations omitted).

In subsequent history, the U.S. Supreme Court stated that the Tennessee Supreme Court's affirmance of the death sentence imposed based on jury's finding that murders were "especially heinous, atrocious, or cruel" was not contrary to clearly established Supreme Court precedent. See Bell v. Cone, 543 U.S. 447 (2005).

Smith v. Mullin, 379 F.3d 919 (10th Cir. Jul. 29, 2004).
The Tenth Circuit held that counsel was ineffective for not presenting evidence of defendant's mental retardation, brain damage, and troubled background in the penalty phase.

Looking to the United States Supreme Court in its analysis, the Tenth Circuit noted that "[t]he Supreme Court has, time and again, cited 'the standards for capital defense work articulated by the (ABA) ... as guides to determining what is reasonable' performance." Id. at 942. (citations omitted). "Those standards repeatedly reference mental health evidence, describing it as 'of vital importance to the jury's decision at the punishment phase. See (2003) ABA Guidelines for the Appointment and Performance of Defense Counsel in Death Penalty Cases 1.1, 4.1, 10.4, 10.7, 10.11. It was patently unreasonable for [trial counsel] to omit this evidence from his case for mitigation.'" Id. (citations omitted).

Rompilla v. Horn, 355 F.3d 233 (3rd Cir. 2004) (Alito, J., majority/Sloviter, J., dissenting).
A three-judge panel of the Third Circuit overturned the district court's decision granting Rompilla a new penalty phase trial, which had been based in part on a finding that his trial counsel was ineffective during the sentencing phase. At issue was counsel's failure to adequately investigate and present evidence regarding Rompilla's family history and educational background, as well as his mental competence.

The majority insisted that the Guidelines are "only guides," and that counsel's failure to meet the standards set forth there does not necessarily indicate ineffective assistance under the standards articulated in Strickland. Id. at 259 n.14.

But in a strongly worded dissent, Judge Sloviter argued that Wiggins and Williams were both decided under the Strickland standard, and, therefore "these two later cases demonstrate how Strickland should be applied." Id. at 275. She noted that "[i]n Wiggins, the Supreme Court quoted from the American Bar Association's Guidelines for the Appointment and Performance of Counsel in Death Penalty Cases 11.4.1(C), p. 93 (1989). . ." regarding the investigation of mitigating evidence, and found that counsel's performance fell short of its "well-defined norms." Id. at 283 (citation omitted). Judge Sloviter considered the majority's "attempt to reconcile its conclusion that Rompilla's counsel provided effective assistance of counsel with the conclusion in Wiggins . . . nothing short of astonishing." Id.


359 F.3d 310 (3rd Cir. Feb. 25, 2004). Petition for rehearing denied.
However, Judge Nygaard filed an opinion, joined by Judges Sloviter and McKee, agreeing with Judge Sloviter's earlier dissent. Judge Nygaard wrote:

[t]he issue before us implicates the most fundamental and important of all rights - to be represented by effective counsel. All other rights will turn to ashes in the hands of a person who is without effective, professional and zealous representation when accused of a crime (emphasis added). Id. at 310.

After giving examples of other capital cases in which "the range of what is deemed 'effective' (by the courts) has widened to …an astonishing spectrum of shabby lawyering." Id. at 311. He continued:

These disturbing examples of inept lawyering in capital cases have propelled professional organizations to act. The American Bar Association has promulgated "Guidelines for the Appointment and Performance of Counsel in Death Penalty Cases." These Guidelines upgrade the minimum standard from "quality" legal representation to "high quality" legal representation. See American Bar Association Guidelines for the Appointment and Performance of Defense Counsel in Death Penalty Cases, 31 HOFSTRA L. REV. 913, 939 (2003) (outlining the 2003 Revisions to the Guidelines [2.1]). Included in those guidelines is the requirement that the capital defendant should "receive the assistance of all expert, investigative, and other ancillary professional services ... appropriate ... at all stages of the proceedings." Here, in my view, counsel's failure to conduct even the most rudimentary investigation into Rompilla's background falls short of being "effective" representation. I believe this level of representation violates not only the standards set out by the American Bar Association, but by accepting it as adequately effective, we continue to degrade the standard set out in Strickland, and ignore the sentiments expressed by Justice Sutherland in Powell v. Alabama.

Id. at 311-12 (citation omitted).


Hamblin v. Mitchell, 354 F.3d 482 (6th Cir. Dec. 29, 2003).
In this capital case from Ohio, the Sixth Circuit granted a new penalty phase trial as the result of ineffective assistance of counsel. Defense counsel made no investigation into Hamblin's severely deprived and violent childhood or his psychological condition, and did nothing in preparation for the sentencing phase.

The majority opinion opened with an analysis of the proper standard against which to measure counsel's performance. It looked to the Supreme Court's decision in Wiggins, noting that "[i]n its discussion of the 1989 ABA Guidelines for counsel in capital cases, the Court held that the Guidelines set the applicable standards of performance for counsel . . . . Thus, the Wiggins case now stands for the proposition that the ABA standards for counsel in death penalty cases provide the guiding rules and standards to be used in defining the 'prevailing professional norms' in ineffective assistance cases" (emphasis added). Id. at 486 (quoting Strickland v. Washington, 466 U.S. 668, 688 (1984)). The court then cited 1989 ABA Guidelines 11.4.1 and 11.8.6 describing counsel's duty to investigate and present mitigating evidence at both the guilt and sentencing phases of trial.

The court went on to review several of its own prior decisions from the 1990s, concluding that "[o]ur analysis of counsel's obligations matches the standards of the 1989 Guidelines quoted by the Supreme Court in Wiggins." Hamblin, 354 F.3d at 486. Although Hamblin's trial took place before publication of the 1989 Guidelines, the court explained that they apply nonetheless:

[T]he standards merely represent a codification of longstanding, common sense principles of representation understood by diligent, competent counsel in death penalty cases. The ABA standards are not aspirational in the sense that they represent norms newly discovered after Strickland. They are the same type of longstanding norms referred to in Strickland in 1984 as "prevailing professional norms" as "guided" by "American Bar Association standards and the like." We see no reason to apply to counsel's performance here standards different from those adopted by the Supreme Court in Wiggins and consistently followed by our court in the past. The Court in Wiggins clearly holds . . . that it is not making "new law" on the effective assistance of counsel . . . ."

Id. at 487 (internal citations omitted). The court also noted that the "[n]ew ABA Guidelines adopted in 2003 simply explain in greater detail than the 1989 Guidelines the obligations of counsel to investigate mitigating evidence. The 2003 ABA Guidelines do not depart in principle or concept from Strickland, Wiggins or our court's previous cases concerning counsel's obligation to investigate mitigation circumstances." Id. at 487. The court then quoted extensively from the Guidelines regarding the duty to investigate mitigating evidence.

In concluding its discussion of the appropriate standards to use in evaluating counsel's performance, the Sixth Circuit explained that "[w]e cite the 1989 and 2003 ABA Guidelines simply because they are the clearest exposition of counsel's duties at the penalty phase of a capital case, duties that were recognized by this court as applicable [in] 1982." Id. at 488.

The court held that "[t]he record reveals that defense counsel's representation of Hamblin at the penalty stage of the case fell far short of prevailing standards of effective assistance of counsel as outlined in Wiggins, our previous cases and the 1989 and 2003 ABA Guidelines." Id. at 489. In its analysis, the court quoted from 2003 ABA Guideline 10.7, explaining that "ABA and judicial standards do not permit the courts to excuse counsel's failure to investigate or prepare because the defendant so requested." Id. at 492.

Bryan v. Mullin, 335 F.3d 1207 (10th Cir. Jul. 21, 2003) (Henry, J., dissenting).
The Tenth Circuit, sitting en banc, affirmed a three-judge panel's denial of habeas relief and held that trial counsel's failure to present evidence regarding Bryan's mental health did not constitute ineffective assistance of counsel. The court found that although Bryan had organic brain disease brought on by severe diabetes, suffered from paranoid delusions, and had previously been adjudicated incompetent to stand trial, his counsel's decision not to introduce this evidence at trial or during sentencing was reasonable.

Judge Henry, joined by three other judges, wrote separately to disagree with the majority's determination that Bryan had received effective assistance of counsel. He took issue with the majority's repeated references to the fact that Bryan and his elderly parents objected to the presentation of evidence regarding Bryan's mental health. In his discussion of whether Bryan's counsel had properly explained the importance of mitigation evidence to the defendant and his family, Judge Henry cited to the Guidelines:

The ABA's guidelines for capital defense work are "standards to which [the Supreme Court has] long referred to as " 'guides to determining what is reasonable.'" Wiggins, 539 U.S. 510, 524 (quoting Strickland, 466 U.S. at 688, 104 S.Ct. 2052). For example, "[p]rior to the sentencing phase ... counsel should discuss with the client the specific sentencing phase procedures ... and advise the client of steps being taken in preparation for sentencing." ABA Guidelines for the Appointment and Performance of Defense Counsel in Death Penalty Cases § 10.11(C) (2003). Similarly, [c]ounsel at every stage of the case should discuss with the client the content and purpose of the information concerning penalty that they intend to present to the sentencing or reviewing body ..., means by which the mitigation presentation might be strengthened, and the strategy for meeting the prosecution's case in aggravation. Id. § 10.11(D). Furthermore, "[c]ounsel should consider, and discuss with the client, the possible consequences of having the client testify or make a statement to the sentencing ... body." Id. § 10.11(E). Despite these "well-defined norms," Wiggins, 539 U.S. at 524, however, it appears that counsel disregarded such responsibilities.

335 F.3d at 1238 n.6. Judge Henry also dismissed the argument that trial counsel's decision not to present mitigating evidence was reasonable because such evidence was inconsistent with trial strategy. He cited to the commentary for Guideline 10.11, "whether or not the guilt phase defense will be that the defendant did not commit the crime, counsel must be prepared from the outset to make the transition to the penalty phase." Id. at 1238-39 (citation omitted).



STATE COURTS

Bowles v. State, 979 So. 2d 182 (Fla. Feb. 14, 2008).
On writ of habeas corpus, Bowles argued trial counsel were ineffective in their failure to introduce mitigating evidence by a mental health expert.

Bowles cited to the 2003 ABA Guidelines for the Appointment and Performance of Defense Counsel in Death Penalty Cases sections 10.7(A), 10.11(A), and 10.11(F) arguing that the "guidelines give explicit instructions on how counsel in death cases should investigate and present mitigating evidence" and following these Guidelines, trial counsel's action were deficient. 2008 Fla. LEXIS at *15.

The court found counsels' failure to call the mental health expert to be a strategic decision. "Bowles does not allege any specific ways in which trial counsel failed to meet the ABA Guidelines... (the mental health expert) was a well-qualified clinical psychologist who concluded that Bowles did not suffer from anything beyond mild impairments. She further concluded that he was impulsive and dangerous. She stated that she would have to discuss three other murders that would not otherwise be introduced. It was not unreasonable for trial counsel to withhold her testimony from the jury." Id. at *14-15.


State of Florida v. Kilgore, No. SC06-1763, 2007 Fla. LEXIS 2201 (Fla. Nov. 21, 2007).
While serving a life sentence, Petitioner was charged with the murder of an inmate. Petitioner was convicted and during the penalty phase, a previous first-degree murder conviction was submitted by the State as an aggravator to justify the death sentence. The sentencing court sentenced Petitioner to death after finding two aggravating circumstances: (1) Petitioner was under sentence of imprisonment at the time he committed the murder; and (2) Petitioner had been previously convicted of a felony involving the use or threat of violence to the person both of which are related to the previous first degree murder conviction.
Subsequently, the Office of the Capital Collateral Regional Counsel (CCRC) was appointed to represent Petitioner to collaterally challenge the first-degree murder conviction and death sentence. Having identified what counsel believed to be substantial grounds to challenge an important aggravator used by the State to justify a death sentence, CCRC sought to vacate the first-degree murder conviction based upon the holding in Brady requiring disclosure of exculpatory evidence, including impeachment evidence. See Brady v. Maryland, 373 U.S. 83 (1963). In turn, however, the State filed a motion to bar CCRC from representing Petitioner in the first-degree murder case, and the circuit court granted the motion on the basis that Florida's statutory scheme for appointment of counsel did not authorize CCRC's representation in the non-capital case.

"The district court concluded that because Florida law required the prior judgment to be set aside in order for the aggravator to be challenged in the capital case, Petitioner was entitled to have effective counsel do what CCRC was attempting to do on his behalf, a course of action also consistent with the ABA Guidelines for the Appointment and Performance of Defense Counsel in Death Penalty Cases (rev. ed. 2003)." Kilgore at 2201. However, the Supreme Court of Florida determined that while Petitioner himself is entitled to prosecute a collateral claim attacking a prior conviction utilized as an aggravator in his capital case, CCRC is not authorized to do so on his behalf since Florida's statute for appointment of counsel did not authorize CCR's representation in a non-capital case.


Ex Parte Van Alstyne, 239 S.W.3d 815 (Tex. Crim. App. Nov. 14, 2007).
Petitioner argued that he cannot be subjected to the death penalty, consistent with Atkins v. Virginia, because he is mentally retarded. The court noted that the lower court judge who convicted Petitioner maintained a healthy skepticism of his own ability to gauge mental retardation based upon nothing more than his intuitive assessment of Petitioner's performance during a media interview. The Court noted:

. . .[b]oth the American Bar Association and the State Bar of Texas recognize the important role of experts in screening defendants for mental health issues, including mental retardation. See ABA GUIDELINES FOR THE APPOINTMENT AND PERFORMANCE OF DEFENSE COUNSEL IN DEATH PENALTY CASES Guideline 4.1 (2003) ("The Defense Team and Supporting Services) Commentary, at 31 ("Counsel's own observations of the client's mental status, while necessary, can hardly be expected to be sufficient to detect the array of conditions [including mental retardation] that could be of critical importance. Accordingly, Subsection A(2) [of Guideline 4.1] mandates that at least one member of the defense team . . . be a person qualified by experience and training to screen for mental and psychological disorders or defects and recommend such further investigation of the subject as may be deemed appropriate."); STATE BAR OF TEXAS GUIDELINES AND STANDARDS FOR TEXAS CAPITAL COUNSEL Guidelines 10.1(B)(2)(c) ("The Defense Team") & 12.2(B)(5)(b) ("Duties of Post-Trial Counsel") (2006) ("Habeas corpus counsel should not rely on his or her own observations of the capital client's mental status as sufficient to detect the array of conditions [including mental retardation] that could be of critical importance. For that reason, at least one member of the defense team should be qualified to screen for mental and psychological disorders or defects and recommend further investigation of the client if necessary.").

239 S.W.3d at 823 n.22. The court held that the record supports the lower court's finding that Petitioner has shown by a preponderance of the evidence that he falls within the range of mentally retarded offenders about whom there is a national consensus that they should not be executed.


State v. Young, 172 P.3d 138 (N.M. Oct. 25, 2007).
The Fourth Judicial District Court judge denied defense counsel's motion which requested "compensa[tion] at an hourly rate, to be allowed to withdraw, and/or to dismiss the death penalty." 172 P.3d at 140. The judge denied the motion but noted, ". . . defense counsel should receive fair compensation for their excellent representation of the defendants, and that the State's failure to pay fair compensation indicates that New Mexico cannot afford the death penalty." Id.

Citing to the 2003 ABA Guidelines, the Supreme Court of New Mexico acknowledged the complexity of death penalty cases that "require a significantly greater degree of skill and experience on the part of defense counsel than is required in a noncapital case. See 2003 ABA, Guidelines for the Appointment and Performance of Defense Counsel in Death Penalty Cases, Guideline 1.1, History of Guideline (rev. ed. 2003), in 31 Hofstra L.Rev. 913, 921 (2004) [hereinafter ABA Guidelines ]." Id. at 141. Furthermore, the Court scrutinized the use of a flat fee granted by the Public Defender Department which fails to compensate the defense counsel's overhead costs, and is less than the hourly wage a videographer working on the case would receive. The Court stated:

Because of the extraordinary demands on capital defense attorneys, ABA Guidelines, Guideline 8.1 Commentary, in 31 Hofstra L.Rev. at 979, the American Bar Association has condemned flat fees, caps on compensation, and lump-sum contracts in death penalty cases. Id., Guideline 9.1(B)(1), in 31 Hofstra L.Rev. at 981. Rather than a flat fee or a capped rate, the ABA Guidelines stress that "[c]ounsel in death penalty cases should be fully compensated at a rate that is commensurate with the provision of high quality legal representation and reflects the extraordinary responsibilities inherent in death penalty representation." Id., Guideline 9.1(B), in 31 Hofstra L.Rev. at 981.

172 P.3d at 142. The Supreme Court reasoned inadequate compensation gives rise "to a presumption of ineffective assistance of counsel." Id. With these findings the Court ordered a stay of prosecution for the death penalty pending the state's ability to provide reasonable compensation. Id. at 144.

Loden v. Mississippi, 971 So. 2d 548 (Miss. Oct. 4, 2007).
Petitioner, during his appeal from a capital murder conviction and death sentence in the Supreme Court of Mississippi, contended that he was improperly denied funds to retain the assistance of a forensic social worker to investigate and present relevant mitigating factors. Petitioner filed an "Ex Parte Motion for Funds for Expert Assistance in the Field of Mitigation Investigation." The motion sought the services of a forensic social worker to assist counsel with interviews, preparation of mitigation witnesses, and adequately develop the full range of mitigation circumstances that existed in this case. The lower court denied Petitioner's motion stating that the forensic social worker would only repeat work of the investigator, the attorneys or psychiatrists.

However, Petitioner asserted that the forensic social worker would have uncovered substantial mitigation evidence and the denial of funds violated the Sixth, Eighth, and Fourteenth Amendments. Petitioner supported his argument by citing to the 2003 ABA Guideline 9.1 for the Appointment and Performance of Counsel in Death Penalty Cases.

In spite of Petitioner's argument, the Supreme Court of Mississippi, citing a reference a different set of ABA Guidelines in Strickland v. Washington, 466 U.S. 668, 688 (1984), determined that while "the ABA Guidelines are guides to determining what is reasonable, they are only guides." The Court explained further that "[t]he State does not have a constitutional obligation to provide indigent defendants with the costs of expert assistance upon every demand."

Jones v. Alabama, CR-05-0527, 2007 Ala. Crim. App. LEXIS 156 (Ala. Crim. App. Aug. 31, 2007).
The Court of Criminal Appeals of Alabama affirmed petitioner's conviction and sentence of death. Jones, 2007 Ala. Crim. App. LEXIS 156, *9. Among other arguments, petitioner contended that since the state of Alabama does not provide for representation in capital cases in accordance with the (2003) ABA Guidelines, petitioner's constitutional rights were denied. Id. The Court ruled that "petitioner failed to set forth any specific facts to establish that his rights to counsel and due process have been adversely affected because the state of Alabama has not adopted the ABA Guidelines." Id. The court held that in order for a convicted defendant's claim that counsel's assistance was so defective as to warrant reversal of conviction or death sentence, two requirements, as outlined in Strickland v. Washington, 466 U.S. 668, 687-89 (1984), must be met:

"First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the counsel guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense."

Moreover, the court insisted that more specific guidelines than those detailed in Strickland are not appropriate. In fact, the court believes its ruling comports with all the Federal Courts of Appeals that have considered the issue; that the proper measure of attorney performance remains simply reasonableness under prevailing professional norms. See Michael v. Louisiana, 350 U.S. 91, 100-101 (1955).

Although the court mentions the ABA Guidelines as a method to determine what is reasonable, the court reaffirmed its notion that "the Guidelines set forth by the ABA are only guidelines and are not determinative, since no set of detailed rules can satisfactorily take account of the variety of circumstances faced by defense counsel or the range of legitimate decisions regarding how best to represent a criminal defendant." See United States v. Decoster, 199 U.S. App. D.C., at 371, 624 F.2d at 208.

In closing, the court asserted that it declined to find that counsel is per se ineffective simply because Alabama has not adopted the ABA Guidelines. "Although the ABA Guidelines may, in some instances, provide guidance as to what is reasonable in terms of counsel's representation they are not determinative. Rather, the two pronged analysis set forth in Strickland remains the standard for deciding ineffective assistance of counsel. . ." Jones, 2007 Ala. Crim. App. LEXIS 156, *10.



State v. Andriano, 161 P.3d 540 (Ariz. Jul. 9, 2007).
The Supreme Court of Arizona affirmed Andriano's death sentence for the murder of her husband. Among Andriano's eleven claims was the trial court's failure to find "that the mitigating circumstances were 'sufficiently substantial to call for leniency.' A.R.S. § 13-703(E)." Id. at 554. The Court pointed to defense counsel as failing to fully argue this claim:

Andriano did not argue why the Court should find in its independent review that the mitigating circumstances were "sufficiently substantial to call for leniency." A.R.S. § 13-703(E). Counsel in capital cases "should take advantage of all appropriate opportunities to argue why death is not suitable punishment for their particular client." ABA Guidelines for the Appointment and Performance of Defense Counsel in Death Penalty Cases Guideline 10.11(L) (2003).

161 P.3d at 554. Although Andriano offered numerous mitigating factors to call for leniency (such as childhood abuse, strong religious convictions, domestic violence victim, and good inmate behavior), the Court affirmed the trial court's decision to give these factors minimal weight. Id. at 555.


State v. Garza, 163 P.3d 1006 (Ariz. Jun. 29, 2007).
The Arizona Supreme Court automatically reviewed the sentence of death pursuant to A.R.S. § 13-703.04 (2006). In its review, the court affirmed the conviction and sentence. While the court did find that the presence of aggravating factors and the presentation of minimal mitigating evidence was sufficient for a sentence of death, it did note that defense counsel has numerous duties during the course of the trial.

In citing to the Guidelines, the court references to Guideline 10.11(L) (2003), indicating that death penalty counsel has a duty "at every state of the case" to "take advantage of all appropriate opportunities to argue why death is not a suitable punishment for their particular client." Garza, 2007 Ariz. LEXIS at *36 n.16. The court stated that in its automatic review of the sentence, it "should have been aided by argument of counsel" on the point of mitigation. Id. at *36. The court also stated that death penalty counsel should not merely rely on the State's statutory duty to review the record, referencing Guideline 10.15.1(C). Instead, the court declared that defense counsel should "seek to litigate all issues . . . that are arguably meritorious." Id. at *36 n.16.


State v. Morris, 160 P.3d 203 (Ariz. Jun. 18, 2007).
This case is the first case to be heard after the Arizona Legislature adopted Section 13-703.05, which requires the Arizona Supreme Court to determine if the trier of fact abused its discretion in finding aggravating circumstances and imposing a sentence of death. 215 Ariz. at 339. Other than the issue of prosecutorial misconduct, Morris did not raise any challenges to the penalty or aggravating phases of his trial. Nevertheless, the court determined that it must review all death sentences as the Arizona statute contains mandatory language. Id. at 340.

The court notes that mandatory review of all death sentences does not relieve death penalty counsel of its duty to "raise all meritorious arguments against a death sentence." Id. n.10. The court cited to Guideline 10.11.L (2003) which states that "[c]ounsel at every stage of the case should take advantage of all appropriate opportunities to argue why death is not suitable punishment for their particular client." Id.


Ard v. Catoe, 642 S.E.2d 590 (S.C. Mar. 5, 2007).
The trial court in this case granted the defendant a new trial based on an ineffective assistance of counsel claim. On appeal from that ruling, the Supreme Court of South Carolina found that the failure of defense counsel to introduce evidence which supported the conclusion that the victim may have handled the gun and to retain an independent expert amounted to ineffective assistance of counsel.

In citing the 2003 ABA Guideline 10.7, the court noted that defense counsel has an obligation at every stage of the proceedings to "conduct thorough and independent investigations." Ard, 372 S.C. at 332. At trial, defense counsel hired the resigned supervisor of law enforcement officials who provided testimony in the case. The court found that the 2003 ABA Guidelines direct defense counsel to "aggressively examine all of the government's forensic evidence" with "the assistance of appropriate experts." Id. The court also stated that the ABA Guidelines "are not aspirational," but rather "are the same type of longstanding norms referred to in Strickland in 1984." Id. at 332 n.14.


Commonwealth v. Spotz, 896 A.2d 1191 (Pa. May 2, 2006).
Defendant appealed from an order of the Court of Common Pleas of Schuylkill County (Pennsylvania), which denied defendant's petition for post conviction relief, pursuant to the Post Conviction Relief Act (PCRA), 42 Pa. Cons. Stat. §§ 9541-9546. Spotz raised, among other issues, an ineffective assistance of counsel claim. The Court noted that,

…the United States Supreme Court recently elucidated in Rompilla v. Beard, 545 U.S. 374, 125 S. Ct. 2456, 162 L. Ed. 2d 360 (2005), this duty to perform a prompt investigation into the circumstances of a case includes the duty to "investigate prior convictions . . . that could be used as aggravating circumstances or otherwise come into evidence." Id. at 2466 n.7 (quoting ABA Guidelines for the Appointment and Performance of Defense Counsel in Death Penalty Cases § 10.7, cmt. (2003 rev. ed.)).

With the Guidelines in mind they examined each of the claims raised by Spotz concerning mitigating evidence. The Court ruled that Spotz failed to show how his counsel was ineffective.


Kilgore v. State, 933 So. 2d 1192 (Fla. Dist. Ct. App. Jun. 21, 2006).
Florida's Second District Court of Appeal granted Dean Kilgore's appeal of an order from the Circuit Court of Polk County, which had dismissed the Office of the Capital Collateral Representative (CCRC) from representing Kilgore in a collateral attack challenging the validity of Kilgore's 1978 first-degree murder conviction which had been used as an aggravating factor in the penalty phase of his 1994 murder case. CCRC had been representing Kilgore in post-conviction for the 1994 conviction, for which he received the death penalty. The Circuit Court's order did not dismiss the underlying collateral proceeding, but dismissed CCRC from the representation of Kilgore in that proceeding.

The Second District Court of Appeal also certified to the Florida Supreme Court "a question of great importance to the Florida Supreme Court...

Are counsel appointed to provide collateral representation to defendants sentenced to death, pursuant to Section 27.702, authorized to bring proceedings to attack the validity of a prior first-degree murder conviction that was used as a primary aggravator in the death sentencing phase?"
Kilgore, 933 So. 2d. at 1193.

The Court of Appeal certified the question because the Florida statute governing appointed counsel does not "explicitly deal with the situation where . . . a previous conviction is the primary aggravator for imposition of the death penalty, and to challenge the death penalty, the previous conviction must be challenged." Id. In certifying the question to the Florida Supreme Court, the Court of Appeal stated that, "in order to challenge the murder conviction aggravator, the prior judgment must have been set aside [and] that is the course that CCRC was attempting to take, and it is consistent with ABA Guidelines." Id. The Court of Appeal noted that CCRC's attempt to challenge Kilgore's previous first-degree murder conviction conformed with the requirements of the 2003 ABA Guidelines. The court also cited to the ABA Guidelines dealing with investigation (10.7), the duty to assert legal claims (10.8), and the duty of post-conviction counsel (10.15.1.E.4). Id.

As stated by the court, the Florida statute permits CCRC to challenge a death sentence as well as the conviction, and in this case one "method of attacking the sentence of death is to attack the primary aggravator, a prior first degree murder conviction." Id. The court noted the importance of this tactic, stating that "attacking an aggravating factor is a traditional and well-accepted method used to challenge death sentences." Id. The court cited the ABA Guidelines to show that the collateral attack of an aggravating factor is often necessary, noting that:

Investigations into mitigating evidence should comprise efforts to discover all reasonably available mitigating evidence and evidence to rebut any aggravating evidence that may be introduced by the prosecutor. ABA Guidelines for the Appointment and Performance of Counsel in Death Penalty Cases (Rev. ed. Feb. 2003) (10.8, Duty to Assert Legal Claims, and such obligations are extended to post-conviction counsel, 10.15.1.E.4). Failure to pursue such a well-established course of action can be used to assert an ineffective assistance of counsel claim, if there was a right to counsel in this context. See Rompilla v. Beard, 545 U.S. 374 (2005). Id.


Henry v. State, 937 So. 2d 563 (Fla. May 5, 2006).
In denying petitioner's request for habeas corpus relief, the Florida Supreme Court ruled that defense counsel's performance was not inadequate. Citing the Wiggins decision, the court noted that the "principal concern … is not whether counsel should have presented a mitigation case. Rather, we focus on whether the investigation supporting counsel's decision not to introduce mitigating evidence of defendant's background was itself reasonable." Henry, 937 So. 2d at 568. The court also stated that even where the defendant waives mitigation, trial counsel may still be ineffective for failing to properly investigate and prepare for the penalty phase of the trial. Id. at 570. The court additionally noted that the 2003 ABA Guideline 10.11 "mandate mitigation investigation and preparation, even if the client objects." Id. at 573.

In Henry's case, the court found that defense counsel complied with the ABA Guidelines by investigating the defendant's mental health history and subpoenaing witnesses for the penalty phase. Id. Henry refused to participate in the investigation and preparation of any type of mitigation, however, and the court concluded that trial counsel's preparation and Henry's decision to waive mitigation did not deny him a "reliable penalty phase proceeding." Id.


Menzies v. Galetka, 150 P.3d 480 (Utah Dec. 16, 2006).
The Supreme Court of Utah found that defense counsel provided ineffective assistance during the portion of the proceedings where he was providing representation. As such, the court reversed the judgment and remanded the case to the trial court and sent instructions to set aside the relevant proceedings. The court found that defense counsel only spoke to the client about the case and the expected strategy once and repeatedly ignored or deliberately avoided contact from the defendant.

In citing the 2003 ABA Guidelines, the court stated that "courts frequently rely on the professional standards established by the ABA when determining the relevant professional norms under the first prong of the Strickland analysis." Menzies, 150 P.3d at 512. The court also noted that the Supreme Court of the United States referred to the Guidelines as "prevailing norms of practice." Stickland, supra. The court specifically stated that it would "rely on the ABA Death Penalty Guidelines to the extent that they are relevant to our decision," Id. at 513, because Utah's post-conviction do not contain any rules or procedures regarding counsel's performance. Id. at 512.

The court stated that one of the main duties of defense counsel is to "maintain close contact with the client regarding litigation developments." Id. at 513 (citing ABA Guideline 10.15.1(E)(1)). The court also noted that post-conviction counsel has additional obligations of investigating the performance of trial counsel as well as investigating the facts underlying the conviction and the sentence, referring to the comments to ABA Guideline 10.15.1. Id.


Torres v. State, 120 P.3d 1184 (Okla. Crim. App. Sept. 6, 2005).
The Court of Criminal Appeals in Oklahoma denied the petitioner's application for post-conviction relief based on trial counsel's failure to raise a violation of the Vienna Convention. In doing so, the Court acknowledged the defense counsel's argument that trial counsel failed to meet the capital defense requirements set forth in the 2003 ABA Guideline 4.1. Although the Court recognized "the utility of guidelines for effective capital counsel," the Court stated that without an adequate showing of prejudice, "we will not find that capital counsel was per se ineffective simply because counsel's representation differed from current capital practice customs, even where the differences are significant." Id. at 1189.


Commonwealth v. Brown, 872 A.2d 1139, (Pa. Apr. 29, 2005) (Saylor, J., dissenting).
The Supreme Court of Pennsylvania held that the failure of counsel to investigate evidence of mental impairment to support a theory of manslaughter was insufficient to establish ineffective assistance, as no evidence was on record at the time of trial that might suggest further investigation was warranted. Id. at 1149.

In a dissenting opinion, Justice Saylor rejected the suggestion that counsel had no responsibility to investigate potential mental illness issues and instead expounded on the duty of counsel to take the initiative in investigation, even in the face of an absence of evidence. Justice Saylor cited to 2003 ABA Guidelines 4.1 to demonstrate the near-ubiquity of mental health issues in the criminal justice system, noting that the performance of "a thorough mental-health investigation is a pillar of the American Bar Association's Guidelines for the Appointment and Performance of Counsel in Death Penalty Cases." Id. at 1173.



Commonwealth v. Williams, 863 A.2d 505 (Pa. Dec. 22, 2004) (Saylor, J., dissenting).
The Supreme Court of Pennsylvania examined a number of claims for post-conviction relief presented by Williams, among them ineffective assistance of counsel, prosecutorial misconduct, and various due process violations. The Court held that none of the claims merited relief.

Justice Saylor dissented, arguing that Williams had established ineffective assistance of counsel at the penalty phase, primarily for failing to develop adequate mitigating evidence. Citing a reference to the 1989 ABA Guideline 11.4.1 (C) in Wiggins v. Smith, 539 U.S. 510 (2003), the opinion recognized defense counsel's "obligation to 'discover all reasonably available mitigating evidence and evidence to rebut any aggravating evidence that may be introduced by the prosecutor.'" Williams, 863 A.2d at 527 (citation omitted). Justice Saylor drew upon substantial support from the 2003 ABA Guidelines throughout his opinion, commenting that "[I]n my view, the drafters' claim that the Guidelines "embody the current consensus about what is required to provide effective defense representation in capital cases" is not an exaggerated one. Id. at 527 n.6 (citation omitted). In particular the Saylor refers to 2003 ABA Guidelines 1.1, 4.1, 10.5, 10.7(A)(2), and 10.11.

The dissent pointed to a number of instances in which the conduct of defense counsel fell short of professional standards. Justice Saylor utilized 2003 ABA Guideline 4.1 in arguing that counsel was irresponsible in scheduling his first meeting with the defendant only one week before trial, id. at 528 n.7, that "competent counsel would have reviewed records from Appellant's other criminal proceedings," id. at 528, that a previous psychotic episode merited professional evaluation, id. at 528 n.8, and that counsel was unjustified in relying on his own opinion of the defendant's psychological state, id. at 528 n.9. Then, Saylor used 2003 ABA Guidelines 10.5 and 10.7(A)(2) to rebut counsel's suggestion that the defendant's adamant commitment to fighting the validity of his conviction excused a lack of penalty phase preparation. Id. at 531 n.17, n.19.

The dissent criticized the majority for too lightly disregarding "the potency of life-history and mental-health mitigation in terms of capital sentencing," claiming that such an approach is contrary to Supreme Court precedent and the ABA Guidelines. Williams, 863 A.2d at 533 (citation omitted). Justice Saylor explained his perspective on the role of mitigating evidence in the sentence process, quoting 2003 ABA Guideline 10.11: "None of this evidence should be offered as a counterweight to the gravity of the crime, but rather to show that the person who committed the crime is a flawed but real individual rather than a generic evildoer[.]" Id. at 534, n.22 (citation omitted). Indeed, psychological evidence of the type at issue here would "provide some sort of explanation for Simmons's abhorrent behavior." Id. at 543, n.23 (relying on 2003 ABA Guideline 10.11 to support this contention).

Justice Nigro filed a separate dissent, agreeing with Justice Saylor that the defendant received ineffective assistance of counsel in the penalty phase. Williams, 863 A.2d at 524.

Zebroski v. State, 822 A.2d 1038 (Del. May 14, 2003).
The Supreme Court of Delaware affirmed a denial of post-conviction relief for ineffective assistance of counsel. Among Zebroski's claims was that the appointment of a single defense counsel constituted ineffective assistance. Id. at 1045. Justice Steele, writing for the court, acknowledged that a trial may be "fundamentally unfair" if the defendant lacks "access to the raw materials integral to the building of an effective defense." Id. at 1045 (citing Ake v. Oklahoma, 470 U.S. 68, 77 (1985)). The Court further explained:

We also recognize that the American Bar Association recommends that each capital defendant possess a "lead counsel" who assembles a defense team with (a) at least one mitigation specialist and one fact investigator; (b) at least one member qualified by training and experience to screen individuals for the presence of mental or psychological disorders or impairments; and (c) any other members needed to provide high quality legal representation.

822 A.2d at 1046 (citing ABA Guidelines for the Appointment and Performance of Defense Counsel in Death Penalty Cases, Guideline 10.4--The Defense Team (Revised ed., Feb. 2003).

The Court agreed that such a defense team was desirable when feasible and that a "lack of proper staffing" might properly be weighed as a factor in claims of ineffective assistance. Id. However, the Court found that the lone counsel passed the standard of reasonableness, noting his reliance on assistance from Public Defender's Office staff and his utilization of an outside psychologist. 822 A2d at 1046.