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The Limited Relevance of ABA Guides

The U.S. Supreme Court today summarily reversed the Sixth Circuit for relying too much on ABA Guidelines when deciding a capital ineffective assistance case. There was no dissent. Justice Alito wrote separately to say he didn't think the Court had devalued the ABA Guidelines quite enough.

The opinion in Bobby v. Van Hook, No. 09-144, is here. The lower federal courts dithered with this case so long that it actually predates the provisions of the Antiterrorism and Effective Death Penalty Act of 1996. Yes, this case is a habeas petition filed 14 years ago.* 

In short, the Sixth made three errors. First, they judged representation in a 1985 trial with the ABA's 2003 guidelines ex post facto. The new guidelines (adopted for the dual purpose of minimizing the number of death sentences and intentionally making capital punishment as expensive as possible) effectively require a scorched-earth investigation of the defendant's entire life from "the moment of conception." (I'm not making that last part up. They really say that.)

Second, they treated ABA Guidelines as Gospel.

To make matters worse, the Court of Appeals (following Circuit precedent) treated the ABA's 2003 Guidelines not merely as evidence of what reasonably diligent attorneys would do, but as inexorable commands with which all capital defense counsel "'must fully comply.'" 560 F. 3d, at 526 (quoting Dickerson v. Bagley, 453 F. 3d 690, 693 (CA6 2006)). Strickland stressed, however, that "American Bar Association standards and the like" are "only guides" to what reasonableness means, not its definition. 466 U. S., at 688. We have since regarded them as such.1 See Wiggins v. Smith, 539 U. S. 510, 524 (2003). What we have said of state requirements is a fortiori true of standards set by private organizations: "[W]hile States are free to impose whatever specific rules they see fit to ensure that criminal defendants are well represented, we have held that the Federal Constitution imposes one general requirement: that counsel make objectively reasonable choices." Roe v. Flores-Ortega, 528 U. S. 470, 479 (2000).

Ahhh, music to my eyes. I've been steaming about this since Rompilla. Some courts, and occasionally the Supreme Court itself, have treated the ABA as if it had the power to amend the Sixth Amendment and decide unilaterally what the Constitution requires for effective counsel.

Third, the Sixth Circuit mischaracterized the defense investigation and its consequences. The Supreme Court goes through the merits at some length and shows that the additional evidence that trial counsel did not find was merely cumulative and did not add that much weight. Sounds a lot like Wood v. Allen (pending).

Here is Justice Alito's concurrence in its entirety.

I join the Court's per curiam opinion but emphasize my understanding that the opinion in no way suggests that the American Bar Association's Guidelines for the Appointment and Performance of Defense Counsel in Death Penalty Cases (rev. ed. 2003) (2003 Guidelines or ABA Guidelines) have special relevance in determining whether an attorney's performance meets the standard required by the Sixth Amendment. The ABA is a venerable organization with a history of service to the bar, but it is, after all,a private group with limited membership. The views of the association's members, not to mention the views of the members of the advisory committee that formulated the 2003 Guidelines, do not necessarily reflect the views of the American bar as a whole. It is the responsibility of the courts to determine the nature of the work that a defense attorney must do in a capital case in order to meet the obligations imposed by the Constitution, and I see no reason why the ABA Guidelines should be given a privileged position in making that determination.

Looks like I'm not the only one who has been steaming since Rompilla. (He wrote the Third Circuit opinion that was reversed 5-4.) In many ways, Justice Alito succeeding Justice O'Connor was simply the substitution of one moderate conservative for another, but there is a real generational difference when it comes to attitudes toward the ABA. Lawyers with conservative views who joined the bar prior to the early 80s or so tend to still look at the ABA as if it represented the whole profession. Those of Justice Alito's age (and mine) have seen it as a tool of the opposition from our beginnings.

Marcia Coyle has this post at BLT.

* All this litigation has been over a case with no doubt whatever that Van Hook is the perpetrator. What a waste. This is a prime example of why capital punishment does not need to cost anywhere near as much as it does.


The "moment of conception" just shows the cocoon in which the ABA committee operated. Obviously, things can happen to a person in utero that could be mitigating (e.g., FAS), but "moment of conception" is just one of those over the top phrases that invite derision.

It's also interesting to look at the author of the Sixth Circuit panel opinion. Judge Merritt. Given this slapdown and his highly unusual stay grant to Sedley Alley, one must wonder whether he should be recused from hearing all capital cases.

"In many ways, Justice Alito succeeding Justice O'Connor was simply the substitution of one moderate conservative for another . . . ."

I'm not sure that's an accurate assessment. Their approaches to judging seem worlds apart.

The courts must be independent. Why? Because people like to judge the objectivity. All of the people think different. Therefore, to be impartial and therefore very difficult.

evden eve nakliyat

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