Right to Counsel

ABA Says Ruling Didn't Diminish Importance
Of Its Guidelines for Capital Representation

Criminal Law Reporter (BNA 11/18/09)

American Bar Association President Carolyn B. Lamm Nov. 16 said the U.S. Supreme Court's recent opinion in Bobby v. Van Hook, 86 CrL 176 (U.S. 2009), should not be read as minimizing the significance courts, attorneys, and legislators should attach to the ABA's Guidelines for the Appointment and Performance of Defense Counsel in Death Penalty Cases.

In a Nov. 9 per curiam opinion summarily dismissing Van Hook, the Supreme Court said the U.S. Court of Appeals for the Sixth Circuit erred in granting federal habeas corpus relief to a condemned Ohio prisoner after applying the ABA's 2003 guidelines to the performance of the lawyers who represented him at his 1985 trial. The Sixth Amendment standard for effective assistance of counsel, set out in Strickland v. Washington, 466 U.S. 668 (1984), guarantees defendants representation that does not fall “below an objective standard of reasonableness” in light of “prevailing professional norms.” Criticizing the circuit court for treating the 2003 ABA guidelines as “inexorable commands,” the Supreme Court in Van Hook said, “Restatements of professional standards, we have recognized, can be useful as ‘guides' to what reasonableness entails, but only to the extent they describe the professional norms prevailing when the representation took place.”

According to Lamm, of White & Case, Washington, D.C., Van Hook does not suggest that the association's guidelines for capital counsel have no significant role to play in assessing attorneys' performance. She told BNA in an e-mail: “It's important to note that the Court did not overrule its own precedent, which says that the ABA Guidelines are guides to determining what is professionally reasonable legal representation in capital cases. The ABA Guidelines therefore remain important to any ineffectiveness of counsel analysis.”

ABA Standards Are ‘Guides' to Reasonableness

While it is “tempting to focus on some of the sensational language” used by the court, Lamm said, the actual holding “is not nearly as quotable.” What the Supreme Court made clear in Van Hook, she said, is that “the standard in assessing the effective assistance of counsel is ‘objective reasonableness' and the ABA Standards provide ‘guides' as to reasonableness that a court might look to but are not the definition itself. Obviously that requires application of the standards to the facts of a particular case.”

“There is nothing in the Court's opinion to suggest that trial counsel, post-conviction counsel, and judges should not continue to use the ABA Guidelines as important guidance regarding the appointment, funding, and performance of the defense function,” Lamm said.

“The reality is that nothing has changed with respect to how these Guidelines can and should be used by anyone who is concerned about ensuring fairness in the administration of the death penalty,” she added.

Full text of Van Hook at http://pub.bna.com/lw/09144.pdf