                                RECOMMENDED FOR FULL-TEXT PUBLICATION
                                     Pursuant to Sixth Circuit Rule 206
                                             File Name: 08a0275p.06

                       UNITED STATES COURT OF APPEALS
                                        FOR THE SIXTH CIRCUIT
                                          _________________


                                                     X
                             Petitioner-Appellant, -
 ROBERT J. VAN HOOK,
                                                      -
                                                      -
                                                      -
                                                          No. 03-4207
           v.
                                                      ,
                                                       >
 CARL S. ANDERSON, Warden,                            -
                             Respondent-Appellee. -
                                                     N
                      Appeal from the United States District Court
                     for the Southern District of Ohio at Columbus.
                    No. 94-00269—George C. Smith, District Judge.
                                         Argued: December 6, 2005
                                   Decided and Filed: August 4, 2008
                     Before: MERRITT, MARTIN, and MOORE, Circuit Judges.
                                            _________________
                                                  COUNSEL
ARGUED: James D. Owen, Keith A. Yeazel, Columbus, Ohio, for Appellant. Stephen E. Maher,
OFFICE OF THE ATTORNEY GENERAL OF OHIO, Columbus, Ohio, for Appellee. ON BRIEF:
Keith A. Yeazel, James D. Owen, Columbus, Ohio, for Appellant. Stephen E. Maher, Charles L.
Wille, OFFICE OF THE ATTORNEY GENERAL OF OHIO, Columbus, Ohio, for Appellee.
                                            _________________
                                                OPINION
                                            _________________
        MERRITT, Circuit Judge. This is an appeal in an Ohio death penalty case by the prisoner,
Van Hook, seeking habeas corpus relief under 28 U.S.C. § 2254. On the evening of February 18,
1985, petitioner Robert Van Hook arrived at a bar frequented by male homosexuals in Cincinnati,
Ohio. He left the bar with David Self, and the two proceeded to Self’s apartment. Once there, Van
Hook strangled Self to the point of unconsciousness. He then brutally killed Self, stabbing him
several times in the head and abdomen. After stealing a few items from Self’s apartment, Van Hook
fled to Florida, where he was apprehended over a month later and subsequently confessed to the
murder.1


        1
          For a more detailed recitation of the facts surrounding the murder and Van Hook’s apprehension, see State
v. Van Hook, 1987 WL 11202 (Ohio Ct. App. May 13, 1987), and Van Hook v. Anderson, 444 F.3d 830 (6th Cir. 2006),
vacated en banc, 488 F.3d 411 (2007).


                                                        1
No. 03-4207                  Van Hook v. Anderson                                                 Page 2


        Back in Ohio, Van Hook waived his rights to a trial by jury, and he pleaded not guilty and
not guilty by reason of insanity. The three-judge panel, elected under Ohio law, rejected this
defense and found him guilty of aggravated murder and aggravated robbery, which made him
eligible for the death penalty under Ohio Rev. Code Ann. § 2929.04(A) (West 2008). Finding that
the mitigating evidence did not outweigh the aggravators, the three-judge panel imposed the death
penalty instead of life imprisonment.
       Though he did not deny killing Self, Van Hook asserted unsuccessfully a variety of errors
both on direct appeal and in state post-conviction proceedings. See State v. Van Hook, 530 N.E.2d
883 (Ohio 1988), cert. denied, 489 U.S. 1100 (1989). After exhausting all of his state court
remedies, Van Hook sought a writ of habeas corpus in federal district court.
       The district court denied the petition on all asserted claims of error. Our panel then reversed
the judgment of the district court because under Edwards v. Arizona, 451 U.S. 477 (1981), Van
Hook’s confession to the Cincinnati Police should have been suppressed. We pretermitted all other
remaining issues. Van Hook v. Anderson, 444 F.3d 830 (6th Cir. 2006), vacated en banc, 488 F.3d
411 (6th Cir. 2007) (by a vote of 8-7), cert. denied, 128 S. Ct. 614 (2007). After the Sixth Circuit,
en banc, vacated our judgment and affirmed the district court’s denial of the petition on the
confession issue, the majority returned this case to our panel to analyze Van Hook’s remaining
grounds for habeas relief.
        After a careful review of the record, we conclude that Van Hook’s trial counsel was
ineffective during the mitigation phase of the trial for three basic reasons, thereby violating his rights
under the Sixth Amendment, as interpreted by the Supreme Court in three cases, Strickland v.
Washington, 466 U.S. 668 (1984); Wiggins v. Smith, 539 U.S. 510 (2003) (incorporating the
American Bar Association Guidelines For the Appointment and Performance of Counsel in Death
Penalty Cases as the professional standard of performance), and Rompilla v. Beard, 545 U.S. 374,
387 (2005) (same). First, his counsel was deficient by failing to fully investigate and present as
evidence all available mitigating factors; second, by failing to secure or attempt to secure an
independent mental health expert to testify that the crime was the product of a mental disease; and
third, by mistakenly introducing and also failing to object to proscribed evidence that was clearly
damaging to Van Hook’s case. The combined effect of these three errors prejudiced Van Hook,
rendered the mitigating hearing unreliable, and led to the imposition of the death penalty. For these
reasons, we reverse the decision of the district court with respect to ineffective assistance of counsel
at the mitigation phase of the trial. We remand the case to the district court with instruction to issue
a writ of habeas corpus vacating Van Hook’s death sentence unless the State conducts a new penalty
phase proceeding within 180 days of remand.
         The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), 28 U.S.C. § 2244,
et seq., was signed into law and became effective on April 24, 1996. Because Van Hook filed his
habeas corpus petition on October 10, 1995, the Act does not apply as a constraint on our
interpretation and application of constitutional standards in this death penalty case. See Mapes v.
Coyle, 171 F.3d 408, 413 (6th Cir. 1999). We review de novo the conclusions of the district court.
See Powell v. Collins, 332 F.3d 376, 388 (6th Cir. 2003).
        Since 1984, the standard for whether counsel’s ineffectiveness fell below the minimum
requirements of the Sixth Amendment contains two components: (1) the deficient performance of
counsel and (2) the resulting prejudice of the defendant. Strickland v. Washington, 466 U.S. 668,
687 (1984). To prevail on an ineffective assistance of counsel claim, Van Hook must satisfy both
the deficient performance and prejudice prongs of Strickland. See Harris v. Bell, 417 F.3d 631, 636
(6th Cir. 2005). For Van Hook to prove that his counsel’s performance was constitutionally
deficient, the performance must have fallen “below an objective standard of reasonableness,”
Strickland v. Washington, 466 U.S. at 688, “under prevailing professional norms.” While the Court
No. 03-4207                 Van Hook v. Anderson                                                Page 3


in Strickland did not lay out a detailed, bright-line set of rules for determining whether counsel’s
performance is adequate, as it did later in Wiggins and Rompilla, the Court did require that in normal
cases such as this one counsel must investigate fully all aspects of a case, id. at 691 (“[C]ounsel has
a duty to make reasonable investigations or to make a reasonable decision that makes particular
investigations unnecessary.”). It explained that this duty is of utmost importance in capital murder
cases, especially at the mitigation phase where the lawyer’s work may be the difference between life
and death. See id. at 706 (Brennan, J., concurring in part and dissenting in part); Harries v. Bell, 417
F.3d 631, 637 (6th Cir. 2005) (“The prospect of being put to death unless counsel obtains and
presents something in mitigation magnifies counsel’s responsibility to investigate”) (emphasis and
internal quotations omitted). Thus, the typical focus of analysis in an ineffective assistance of
counsel during mitigation case is “whether the investigation supporting counsel’s decision not to
introduce mitigating evidence . . . was itself reasonable.” Wiggins v. Smith, 539 U.S. 510, 523
(2003) (emphasis in original).
        After Strickland, this Court and the Supreme Court made clear in a number of cases that
counsel in death cases should follow closely the ABA standards referred to above. See Wiggins v.
Smith, 539 U.S. at 524, Rompilla v. Beard, 545 U.S. at 387 (2005) (“[W]e long have referred [to
ABA standards] as guides to determine what is reasonable”) (internal quotations omitted); Haliym
v. Mitchell, 492 F.3d 680, 717-18 (6th Cir. 2007) (explaining that “the fact that counsel’s
performance fell short of several of the American Bar Association’s guidelines” further reinforced
the conclusion that counsel’s performance was deficient). We have explained clearly that the ABA
Guidelines for the Appointment and Performance of Counsel in Death Penalty Cases [hereinafter
ABA Guidelines] provide the “guiding rules and standards to be used in defining the ‘prevailing
professional norms’ in ineffective assistance cases.” Hamblin v. Mitchell, 354 F.3d 482, 486 (6th
Cir. 2003), see also Dickerson v. Bagley, 453 F.3d 690, 693 (6th Cir. 2006) (“Our Court has made
clear that . . . counsel for defendants in capital cases must fully comply with [the ABA
Guidelines].”). All three of the deficiencies listed above, and explained more fully below, fall well
below objective standards of reasonableness outlined in the ABA standards as applied in the case
law developed in capital cases interpreting the Sixth Amendment requirement of the effective
“assistance of counsel for his defense.” U.S. Const. amend. VI.
                           I. Failure to Investigate Mitigating Factors
        Van Hook is correct that the performance of his trial counsel was deficient during the
mitigation phase because his attorneys failed to fully investigate and present evidence of all the
potential mitigating factors that could have reduced his sentence from death to life imprisonment.
Counsel has a duty to investigate fully, unless counsel makes a reasonable strategic choice to limit
the investigation. See Strickland, 466 U.S. at 690-91 (“[S]trategic choices made after less than
complete investigation are reasonable precisely to the extent that reasonable judgments support the
limitations on investigation.”).
         Our Court’s precedents make clear that a partial but ultimately incomplete mitigation
investigation is inadequate. See Dickerson v. Bagley, 453 F.3d 690, 695-97 (6th Cir. 2006) (holding
that trial counsel was ineffective, despite having presented eight witnesses at mitigation, for failing
to discover and introduce evidence that the defendant had a low I.Q., had a borderline personality
disorder, was taunted at school, and was referred to as “the moron” by his mother); Harries v. Bell,
417 F.3d 631, 638 (6th Cir. 2005) (holding trial counsel deficient at mitigation for failing to fully
investigate the defendant’s family history and mental health, despite having conducted at least six
interviews). This is particularly true when counsel’s investigation failed to reveal any of the
significant, potentially mitigating details of the defendant’s personal and family history. See Haliym
v. Mitchell, 492 F.3d 680, 713 (6th Cir. 2007) (explaining that “the Sixth Circuit has frequently
considered [the defendant’s family history of abuse] an important mitigation factor”). Because the
“history, character, and background of the offender” is expressly listed as a statutory mitigating
No. 03-4207                 Van Hook v. Anderson                                               Page 4


factor, Ohio Rev. Code Ann. § 2929.04(B), it is of utmost importance for counsel to investigate fully
and present any of the aspects of the defendant’s upbringing that might bear on his culpability. The
ABA Guidelines explain that this investigation ought to include interviews with family members
and all other people who knew the client: “It is necessary to locate and interview the client’s family
members (who may suffer from some of the same impairments as the client), and virtually everyone
else who knew the client and his family, including neighbors, teachers, clergy, case workers,
doctors, correctional, probation or parole officers, and others.” ABA Guidelines ¶ 10.7, at 83. Such
thorough interviews are necessary to reveal all potential arguments to support a case for mitigation.
         Both this Court and the Supreme Court have also held counsel’s performance deficient when
counsel’s last-minute investigation resulted in overlooking potentially powerful mitigating evidence.
See Williams v. Taylor, 529 U.S. 362, 396-99 (2000) (explaining that counsel only began preparing
for the mitigation proceeding “a week before the trial,” thus not having enough time to uncover
records of the defendant’s “nightmarish childhood”); Powell v. Collins, 332 F.3d 376, 398 (6th Cir.
2003) (stating that the trial counsel spent only “two full business days” preparing for mitigation);
Glenn v. Tate, 71 F.3d 1204, 1207 (holding that counsel’s failure to make any significant
preparations for the mitigation phase until after the conclusion of the guilt phase was itself
“objectively unreasonable”). The requirement for counsel to perform thorough, not last-minute,
investigations before a mitigation hearing is further reinforced by the ABA Guidelines: “The
mitigation investigation should begin as quickly as possible, because it may affect the investigation
of first phase offenses, decisions about the need for expert evaluations, motions practice, and plea
negotiations.” ABA Guidelines ¶ 10.7 at 82 (internal parentheticals omitted). The ABA Guidelines
also explain that preparing for the mitigation phase of trial “requires extensive and generally
unparalleled investigation into personal and family history.” Id. ¶ 10.7, at 81.
         Applying these clear rules to the performance of Van Hook’s trial counsel, it is clear that
counsel’s investigation into and presentation of mitigating evidence was deficient. While Van
Hook’s trial attorneys uncovered a little information about his traumatic childhood experience in
their last-minute investigation, many of the most important details were not discovered and therefore
were never presented to the sentencer. Significantly, trial counsel’s investigation failed to reveal
that Van Hook’s parents repeatedly beat him (J.A. at 1619), that he had witnessed his father attempt
to kill his mother several times (J.A. at 1619), and that his mother was committed to a psychiatric
hospital when he was between four and five years old (J.A. at 1570). These details of his childhood
are even more unsettling and potentially mitigating than the omitted family background evidence
in Dickerson, where the omitted evidence simply included the fact that the defendant had been
taunted at school and referred to as the “moron.” The details about Van Hook’s childhood, which
were uncovered later by the more thorough investigation of Van Hook’s habeas counsel,
demonstrate that trial counsel’s investigation into Van Hook’s background was never finished
because the investigation was conducted at the last minute.
        Van Hook’s counsel did not “begin quickly” before trial. Rather after the guilt phase,
counsel started a last minute investigation for the mitigation hearing. (J.A. at 4400-04.) His
attorneys thus spent far less time preparing than the counsel in Williams, where counsel was deemed
ineffective for not having begun preparing for mitigation until a week before the guilt phase of trial.
This cursory preparation for mitigation also parallels the preparations by counsel in Glenn, which
this Court held to be objectively unreasonable.
         By not performing the sort of extensive, thorough investigation that is a minimum
requirement of trial counsel in these cases, the performance of Van Hook’s counsel turned up very
little of the available mitigation evidence. Contrary to the perception of the state appellate court,
this omitted evidence was much more than “merely cumulative.” State v. Van Hook, 1992 WL
308350, at *2 (Ohio Ct. App. Oct. 21, 1992). This omitted evidence goes far beyond the brief
details of his parents’ alcohol abuse and dysfunctional relationship that were presented at mitigation.
No. 03-4207                      Van Hook v. Anderson                                                          Page 5


        Nor can counsel’s decision to terminate the mitigation investigation before uncovering this
information be considered a reasonable, strategic decision. Considering the information that they
had already learned about Van Hook’s abusive family background, counsel certainly had reason to
suspect that much worse details existed. But his attorneys decided not to interview or even contact
Van Hook’s step-sister, his paternal uncle, two of his paternal aunts, his maternal uncle, and the
psychiatrist who treated his mother when she was committed. All of these individuals could have
helped his counsel narrate the true story of Van Hook’s childhood experiences in mitigation.    All
of them would have been willing to testify on his behalf. (J.A. 1569-73, 1619-26.)2
        Failing to complete a mitigation investigation when additional family witnesses are available
is not sound trial strategy; neither is waiting until four days before the mitigation hearing to begin
the investigation. See Williams v. Taylor, 529 U.S. 362, 395 (2000); Haliym v. Mitchell, 492 F.3d
680, 712 (6th Cir. 2007); Dickerson v. Bagley, 453 F.3d 690, 695 (6th Cir. 2006); Harries v. Bell,
417 F.3d 631, 638 (6th Cir. 2005). Because his trial lawyers failed to conduct a full mitigation
investigation and present available mitigating evidence to the sentencer, their performance fell short
of “prevailing professional norms,” Strickland, 466 U.S. at 688.
                   II. The Failure to Seek an Independent Mental Health Expert
                                    to Testify for the Defendant
        Trial counsel’s last minute mitigation investigation led to another violation of ABA
Guidelines respecting the effective assistance of counsel: the failure to put on evidence that Van
Hook’s criminal behavior was the result of severe mental illness. Only in the post-conviction phase
of the case did Van Hook’s counsel seek or find an expert witness to testify that Van Hook’s crime
was the result of a mental disease. All three of the experts who testified at trial were appointed by
the court, not selected by the defense, and testified in favor of the prosecution’s argument that Van
Hook did not suffer from a mental illness. The failure to seek or put on a mental health expert who
would give evidence favorable to Van Hook was a serious error.
        The ABA Guidelines state what effective death penalty counsel have known and practiced
for years:
         In deciding which witnesses and evidence to prepare concerning penalty, the areas
         counsel should consider are the following: Expert . . . witnesses along with
         supporting documentation (e.g. school records, military records) to provide medical,
         psychological, sociological, cultural or other insights into the client’s mental and/or
         emotional state and life history that may explain or lessen the client’s culpability . . .
         [to] otherwise support a sentence less than death . . . and/or to rebut or explain
         evidence presented by the prosecutor.
ABA Guidelines ¶ 10.11, at 104. These standards for determining prevailing professional norms
in death penalty cases highlight the way that an expert witness working closely with counsel can


         2
           Counsel’s decision not to introduce additional family background witnesses also cannot be justified under the
strategy of attempting to prevent the sentencer from learning about prior criminal convictions. In several of our recent
cases where few mitigation witnesses were introduced, we refused to find counsel’s performance deficient in large part
because these witnesses likely would have had to reveal the defendant’s history of violence. See Durr v. Mitchell, 487
F.3d 423, 436 (6th Cir. 2007) (finding counsel not to be deficient when introducing family and friend witnesses might
have caused prior rape convictions to come up in cross-examination); Tinsley v. Million, 399 F.3d 796, 809 (6th Cir.
2005) (finding counsel’s decision not to introduce any mitigating character evidence reasonable because it might have
revealed his prior manslaughter conviction); cf. Hartman v. Bagley, 492 F.3d 347, 360 (6th Cir. 2007) (finding counsel’s
decision not to introduce expert’s report “strategic” because “it paint[ed] a decidedly unsympathetic portrait” of the
defendant). To the contrary, the sentencer in Van Hook’s case already knew of his prior convictions, and any additional
witnesses that might have been called would have only further developed his case for mitigation.
No. 03-4207                 Van Hook v. Anderson                                                   Page 6


strengthen the defense’s case for mitigation. This court has long held that these standards “represent
a codification of longstanding, common-sense principles of representation understood by diligent,
competent counsel in death penalty cases.” Hamblin, 354 F.3d 482, 487. They are “the clearest
exposition of counsel’s duties at the penalty phase of a capital case.” Id. at 488.
        The complexities of Van Hook’s case demonstrate his particular need for an independent
mental health expert to assist in the defense. He pleaded not guilty by reason of insanity (J.A. at
362), and his justification for this was that he had been diagnosed with a mental illness, i.e.,
“borderline personality disorder.” Furthermore, after Van Hook was found guilty, one of the few
statutory mitigating factors relevant to his case was whether he “lacked substantial capacity to
appreciate the criminality of [his] conduct or to conform [his] conduct to the requirements of the
law” as a result of a “mental disease or defect.” Ohio Rev. Code Ann. § 2929.04(B)(3) (emphasis
added). Presenting a strong case that his psychiatric disorder constituted such a “mental disease or
defect” required the aid of an independent psychiatric expert. Moreover, the other potentially
mitigating factors to be weighed for his benefit were his “history, character, and background,” as
well as any other mitigating factors “relevant to the issue of whether [he] should be sentenced to
death.” Id. § 2929.04(B)(7). Van Hook had experienced a violent, traumatic childhood. Testimony
by his father and mother during the mitigating hearing revealed that his father was abusive to his
mother (J.A. at 4497), his parents had divorced when he was young (J.A. at 4500), and his father
began taking him to bars at age eleven, where he was encouraged to consume alcohol and participate
in fights (J.A. at 4467-69). An independent defense expert was therefore also crucial to explain to
the sentencer how the details of his upbringing affected him psychologically, thereby reducing his
overall culpability for the murder. An independent mental health expert was necessary to establish
the strongest case of mental illness for the sentencer.
        Despite the fact that Van Hook was entitled to an independent mental health expert and that
such an expert would have bolstered his case, his trial counsel failed to exercise this right. Because
the court had found Van Hook to be indigent (J.A. at 363), and because he pleaded not guilty by
reason of insanity (J.A. at 362), Van Hook had triggered his right to an expert. See Ake v.
Oklahoma, 470 U.S. 68, 85 (1985); Powell v. Collins, 332 F.3d 376, 392 (6th Cir. 2003). While the
court did appoint three mental health experts to evaluate Van Hook, it is clear that none of these
experts was the sort of independent expert needed by the defense. The circumstances surrounding
the appointment of experts, as well as their evaluations as reported to the trial court, are summarized
by the district court:
               Petitioner was indicted on April 18, 1985. Less than a week later, on
       April 23, 1985, petitioner’s defense attorneys filed a plea of Not Guilty by Reason
       of Insanity (“NGRI”), which triggered three court-ordered psychiatric evaluations.
       The trial court appointed Dr. Emmet Cooper, Dr. Nancy Schmidtgoessling, and the
       Court Psychiatric Center to conduct evaluations of petitioner pursuant to the NGRI
       plea.
               Dr. Emmet Cooper, a psychiatrist, was called by defense counsel during
       petitioner’s case in chief [and during the penalty phase of the trial]. He testified that
       petitioner suffered from a borderline personality disorder . . . . But Dr. Cooper could
       not say that petitioner suffered from a mental disease or defect.
               Dr. Nancy Schmidtgoessling, a clinical psychologist, testified for the
       prosecution during its rebuttal case and was also called by the defense during the
       penalty phase of the trial . . . . She also testified, however, that petitioner never
       suffered from a mental disease or defect, that he was aware of the quality and
       wrongfulness of his action, and that he was able to conform his conduct.
No. 03-4207                 Van Hook v. Anderson                                                     Page 7


               Dr. Teresito Alquizola, a physician and psychiatrist, testified for the
       prosecution during its rebuttal case. . . . Dr. Alquizola testified that petitioner did not
       suffer from a mental disease or defect, and that at the time of the offense, he
       possessed the capacity to know the wrongfulness of his actions and, to a large extent,
       was able to conform his conduct. . . .
                 In addition to the testimony given by Drs. Cooper, Schmidtgoessling, and
       Alquizola, a fourth report was prepared by Dr. Donna E. Winter of the Court
       Psychiatric Center in connection with the mitigation phase of petitioner’s trial,
       pursuant to [Ohio Rev. Code Ann. § 2947.06]. Dr. Winter found that petitioner
       suffered form a borderline personality disorder. Dr. Winter went on to conclude that
       . . . . petitioner was not suffering from a mental disease or defect, that he was able
       to appreciate the criminality of his actions, and that he was capable of conforming
       his conduct.
(Emphasis added, J.A. at 5934-36.) It is evident from a review of the district court’s summary that,
of the four experts whose evaluations were considered as evidence, three were appointed by the trial
court as an automatic response to Van Hook’s insanity plea, and the fourth was retained by the
prosecution. Van Hook’s counsel did not seek an independent expert, as did the prosecution, but
instead relied on the experts that had been triggered for Van Hook by his plea. This deficiency
parallels the performance of counsel in Haliym v. Mitchell, 492 F.3d 680, 717 (6th Cir. 2007), where
we recently held counsel’s performance to be deficient for choosing to rely on the report of a court-
appointed expert instead of utilizing available funds for an independent expert. It is also analogous
to the performance of counsel in Glenn v. Tate, 71 F.3d 1204, 1210 (6th Cir. 1995), where we
faulted counsel for “settl[ing] for court-appointed experts whose reports were to be given to the jury
. . . rather than exercising the [defendant’s] right to obtain defense experts.”
       The record undermines the State’s argument that Dr. Cooper (whom Van Hook called in the
absence of his own expert during both the guilt and mitigation phases of trial) was a sufficient expert
who was independent of the prosecution. Dr. Cooper testified during the mitigation hearing that Van
Hook had “no remorse,” that he was a “dangerous individual,” and that he did not suffer from a
“mental illness or defect.” (J.A. at 4443.) Dr. Cooper was not an effective substitute for a real
mental health expert selected by the defense.
         The expert opinion of Dr. Martin Ryan, a psychiatrist retained by Van Hook’s habeas
counsel, demonstrates the magnitude of this failure. Dr. Ryan stated that it is more likely than not
that a reasonable psychiatrist at the time would have concluded that Van Hook’s severe borderline
personality disorder was indeed a mental disease and met the test of “mental disease or defect”
established by the Ohio statute quoted above. (J.A. at 5879.) His affidavit, which was submitted
to the district court, explained that the disorder was considered a mental disease under the generally
accepted standards approved by the American Psychiatric Association. (J.A. at 5879.) Respondent
did nothing to rebut these statements by Dr. Ryan either in its brief or at oral argument.
No. 03-4207                 Van Hook v. Anderson                                               Page 8


                          III. Trial Counsel’s Mistake Regarding the
                               Pre-sentence Investigation Report
         Trial counsel requested a Pre-sentence Investigation Report (the “Report”) to be prepared,
and that Report, including damaging victim-impact statements, was introduced into evidence during
mitigation without any objection from counsel. Courts in Ohio give a defendant in a capital murder
trial the statutory option of having such a Report made before the mitigation hearing. Ohio Rev.
Code Ann. § 2929.03(D)(1). If the defendant requests the Report, copies of the Report will
automatically be furnished to the court, the prosecutor, and the defendant. Counsel then loses
control of how the Report is used at the mitigation trial. Experienced capital counsel generally
believe that it is a mistake to ask for such a Report.
        This Court has explained before that requesting a Report instead of performing a full
mitigation investigation is a sign of inadequate preparation. See Haliym v. Mitchell, 492 F.3d 680,
717 n.29 (6th Cir. 2007) (stating that counsel’s reliance on a PSI was part of the “overarching
question of whether counsel’s . . . preparation for mitigation was constitutionally deficient”); Glenn
v. Tate, 71 F.3d 1204, 1209 (faulting counsel for requesting such a Report). The ABA Guidelines
similarly advise counsel for capital defendants in Ohio against requesting it. See Haliym, 492 F.3d
at 717 (citing ABA Guidelines at 1073) (“Because Ohio provides capital defendants the right to
reasonably necessary investigation, experts, or other assistance for trial and penalty phases, capital
counsel who request a pre-sentence report instead may be ineffective for doing so.”).
        Trial counsel then failed to object to the introduction of the victim-impact statement that was
contained within the Report. In Booth v. Maryland, 482 U.S. 496, 509 (1987), the Supreme Court
held that the introduction of victim-impact evidence at the mitigation phase of a capital murder trial
violates the Eighth Amendment. A few years later, though, the Court retreated somewhat by holding
that “the Eighth Amendment erects no per se bar” on the introduction of all such evidence. Payne
v. Tennessee, 501 U.S. 808, 827 (1991) (emphasis in original). But the Payne Court said that it only
overturned the part of Booth disallowing evidence “relating to . . . .the impact of the victim’s death
on the victim’s family,” and that it did not overrule the part of Booth that forbids “a victim family
members’ characterization and opinions about . . . the appropriate sentence.” Id. at 830 n.2. Our
Court recently aligned itself with many of our sister circuits in holding that victim-impact statements
recommending an appropriate sentence are barred by the Eighth Amendment. See Fautenberry v.
Mitchell, 515 F.3d 614, 638 (6th Cir. 2008) (holding that “the trial court erred in admitting this
evidence”); see also Welch v. Sirnans, 451 F.3d 675, 703 (10th Cir. 2006) (noting that many circuits
have found this portion of Booth’s holding “survived the holding in Payne and remains valid”).
Thus, the introduction of any opinions of the victim’s family that suggest an appropriate sentence
for the defendants is precluded by the Constitution.
         Van Hook’s attorneys did not object when the Report they requested caused the entry of the
victim-impact statements into evidence during the mitigation hearing. (J.A. at 5561, 5567-68.) The
statements included a plea to the sentencer from Mrs. Self, the victim’s mother, that Van Hook be
given the death penalty. Mrs. Self said that she “fe[lt Van Hook] should receive the maximum
possible punishment.” (J.A. at 5568.) She also stated that if the State did not execute Van Hook,
“it just compounds the offense.” (J.A. at 5568.) Finally, she said that “the maximum punishment
would prevent another family from suffering as a result of [Van Hook’s] actions.” (J.A. at 5568.)
The victim-impact statement included in the Report therefore contained an opinion by family
members about what they thought to be the appropriate sentence. Trial counsel invited a Report that
contained a strong plea for the death penalty and did nothing to keep this recommendation out, even
though the Eighth Amendment case law holds its admission unconstitutional.
       Additionally, the ABA Guidelines emphasize the importance of counsel’s objecting to
potentially inadmissible evidence in a capital murder case. See ABA Guidelines ¶ 10.7 at § 7 (“One
No. 03-4207                 Van Hook v. Anderson                                              Page 9


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.”). Because
Van Hook’s counsel failed to object to the victim-impact evidence, and because his counsel in fact
caused the victim-impact statement to go into evidence by requesting such a Report, his attorneys’
performance fell below an “objective standard of reasonableness,” Strickland, 466 U.S. at 688.
       In sum, because Van Hook’s trial attorneys failed to fully investigate and present his family
background as mitigating evidence, failed to obtain the sort of independent mental health expert
needed to prepare an effective defense, and failed to object to proscribed, damaging evidence, their
performance was constitutionally deficient under the first prong of Strickland.
                                           IV. Prejudice
        For an ineffective assistance of counsel claim to succeed, counsel must not only have
performed deficiently, but that performance must have prejudiced the defendant. See Strickland v.
Washington, 466 U.S. 668, 692 (1984). To prevail on the prejudice prong of a Strickland claim, Van
Hook must show “that there is a reasonable probability that, but for counsel’s unprofessional errors,
the results of the proceeding would have been different.” Id. at 694. A reasonable probability is “a
probability sufficient to undermine confidence in the outcome.” Id. Accordingly, because Van
Hook challenges his death sentence, “the question is whether there is a reasonable probability that,
absent the errors, the sentencer . . . would have concluded that the balance of aggravating and
mitigating circumstances did not warrant death.” Id. at 695. Van Hook must therefore show that
his counsel’s errors “were serious enough to deprive [him] of a proceeding the result of which was
reliable.” Glenn v. Tate, 71 F.3d 1204, 1210 (6th Cir. 1995).
        Counsel’s deficient performance prevented the three-judge panel from learning fully about
the two statutory mitigating factors that were the strongest in his case — his traumatic family
background and his mental illness. The trial court concluded that there was “absolutely no evidence
that would suggest that [he] suffered from a mental disease or defect.” (J.A. at 629.) Had counsel
sought out an independent mental health expert instead of using the experts automatically appointed
by the court, that panel would have heard strong evidence that Van Hook’s severe borderline
personality disorder should indeed be considered a mental disease. While the court-appointed
experts testified to the contrary, Van Hook’s habeas expert, Dr. Ryan, testified at length that such
a disorder was in fact considered a mental disease at the time of trial under the generally accepted
standards approved by the American Psychiatric Association. (J.A. at 5879.)
         Additionally, had his attorneys performed a complete mitigation investigation, that panel
would have learned how Van Hook was often beaten by his parents, how he saw his father try to kill
his mother, and how his mother was committed to a psychiatric hospital when he was a young child.
(J.A. at 1570, 1619.) Further, had his attorneys sought out the available family members willing to
help tell his story, that panel would have heard additional “first-hand accounts from those who knew
[Van Hook] best,” Powell v. Collins, 332 F.3d 376, 400 (6th Cir. 2003).
         The deficient performance by Van Hook’s counsel also caused the three-judge panel to
consider unconstitutional and damaging information while deliberating on the appropriate sentence.
It is generally true that, because judges in bench trials often hear inadmissible evidence, they are
“presumed to ignore [it] when making decisions.” Harris v. Riviera, 454 U.S. 339, 346 (1981); see
also Wickline v. Mitchell, 319 F.3d 813, 823-24 (6th Cir. 2003) (holding that the three-judge panel
would not likely have been misled by improper evidence). But here the panel expressly stated in
its sentencing opinion that it had considered “the presentence report and mental examination report
No. 03-4207                       Van Hook v. Anderson                                                           Page 10


requested by the defendant.”3 (J.A. at 623). When a panel of judges expressly states that it
considered such inadmissible evidence, it is no longer proper to make such a presumption. For this
reason, the present case is also distinguishable from Fautenberry v. Mitchell, 515 F.3d 614, 638-39
(6th Cir. 2008), where we held that the Ohio Supreme Court’s refusal to reverse a sentence of death
based on a similar victim-impact statement was appropriate. In that case, there was “no indication
that the panel was influenced by or considered the victim-impact evidence available to them.” Id.
at 638. That cannot be said here.
         The combined prejudice Van Hook suffered as a result of his counsel’s failure to secure an
independent mental health expert, failure to perform a complete mitigation investigation, and failure
to object to inadmissible evidence prevented his mitigation hearing from being reliable. Our
conclusion is bolstered by the fact that Ohio is a so-called “weighing” state, which means that the
aggravating circumstances must outweigh the mitigating factors in order to impose the death
penalty. Ohio Rev. Code Ann. § 2929.04(B). Van Hook’s conviction only qualified for one of
Ohio’s statutory aggravating circumstances: his offense “was committed while [he] was committing
. . . aggravated robbery.” Id. § 2929.04(A)(7). Thus, the introduction of more available mitigating
evidence could certainly have tipped the scales in favor of his life. The threshold for finding
prejudice in this case is thus lower than in previous cases, where we found prejudice despite the trial
courts’ having found multiple aggravating circumstances. Cf. Dickerson v. Bagley, 453 F.3d 690,
691 (6th Cir. 2006) (finding prejudice on reweighing despite two aggravating factors); Harries v.
Bell, 417 F.3d 631, 634 (6th Cir. 2005) (same); Skaggs v. Parker, 235 F.3d 261, 264 (6th Cir. 2000)
(same).
        Because of the combined effect of these errors, we believe that “there is a reasonable
probability that, absent the errors, the sentencer . . . would have concluded that the balance of
aggravating and mitigating circumstances did not warrant death.” Strickland, 466 U.S. at 695. This
is especially true because, as in Dickerson, “any one of the three judges alone could have prevented
imposition of the death penalty.” 453 F.3d at 699 (citing Ohio Rev. Code Ann. § 2929.03(D)(3),
which requires unanimity for a death sentence). While it is possible that the panel “could have heard
the evidence described above, and still have decided on the death penalty . . . that is not the
appropriate test. Instead, we must ask whether ‘the available mitigating evidence, taken as a whole,
might well have influenced the [panel’s] appraisal of [Van Hook’s] culpability.” Harries v. Bell,
417 F.3d 631, 640 (6th Cir. 2005) (citations omitted) (quoting Wiggins v. Smith, 539 U.S. 510, 538
(2003)). Considering the evidence that was available and yet omitted, together with the evidence
that should not have been presented to the panel but was, we conclude that, absent Van Hook’s
counsel’s deficiency, there is a reasonable probability that the result of his sentencing proceeding
would have been different.
                                                    V. Conclusion
        Because we have decided that counsel offered constitutionally ineffective assistance to Van
Hook at the sentencing phase of the trial, we will not decide, and we therefore pretermit the
remaining issues. For the foregoing reasons, we reverse the decision of the district court and remand
the case to the district court with instructions to issue a writ of habeas corpus vacating Van Hook’s
death sentence unless the State conducts a new penalty phase proceeding within 180 days of remand.




         3
           The district court overlooked this important fact entirely in its determination that Van Hook’s counsel’s failure
to object to the victim-impact evidence caused him no prejudice. That court stated in its analysis that “there is no
indication whatsoever that the trial court gave weight to the victim impact evidence in determining that the aggravating
circumstance outweighed the mitigating factors.” (J.A. at 5910.) This statement is belied by the record.
