[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as
State v. Herring, Slip Opinion No. 2014-Ohio-5228.]




                                        NOTICE
     This slip opinion is subject to formal revision before it is published in
     an advance sheet of the Ohio Official Reports. Readers are requested
     to promptly notify the Reporter of Decisions, Supreme Court of Ohio,
     65 South Front Street, Columbus, Ohio 43215, of any typographical or
     other formal errors in the opinion, in order that corrections may be
     made before the opinion is published.


                         SLIP OPINION NO. 2014-OHIO-5228
            THE STATE OF OHIO, APPELLANT, v. HERRING, APPELLEE.
  [Until this opinion appears in the Ohio Official Reports advance sheets, it
      may be cited as State v. Herring, Slip Opinion No. 2014-Ohio-5228.]
Criminal law—Postconviction relief—Ineffective assistance of trial counsel in
        capital case—Deficient investigation of mitigating evidence—Reasonable
        probability that but for deficiency, result of penalty phase would have
        been different—Decision remanding for new sentencing hearing affirmed.
   (No. 2011-0451—Submitted April 29, 2014—Decided December 3, 2014.)
             APPEAL from the Court of Appeals for Mahoning County,
                          No. 08-MA-213, 2011-Ohio-662.
                                 _________________
        PFEIFER, J.
        {¶ 1} In this appeal, the state challenges a decision of the court of
appeals granting the petition for postconviction relief of the defendant-appellee,
Willie Herring, a death-row inmate. The state challenges the appellate court’s
finding that Herring’s counsel provided ineffective assistance in failing to
                            SUPREME COURT OF OHIO




properly prepare for the mitigation phase of trial and the court’s decision to order
a new sentencing hearing.
        {¶ 2} We hold that the court of appeals properly applied the standards set
forth in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674
(1984), in holding that trial counsel were deficient in preparing for mitigation and
that the deficiency was prejudicial. Accordingly, we uphold the decision of the
court of appeals vacating the death penalty and remanding the matter to the trial
court for a new sentencing hearing.
                                      I. Facts
        {¶ 3} Evidence presented at trial showed that Herring and five other
individuals robbed the Newport Inn, a bar in Youngstown, shortly after midnight
on April 30, 1996. They shot five people, robbed the till, and left. Three of the
five victims died and two others were seriously wounded. See State v. Herring,
94 Ohio St.3d 246, 762 N.E.2d 940 (2002).
        {¶ 4} Herring was the evident ringleader of these crimes. Id. at 266.
The participants had gathered at Herring’s house before the robbery. Id. at 246.
Herring provided three of the individuals with handguns and kept a 9 mm Cobray
semiautomatic for himself. Id. at 246-247. Herring donned a Halloween mask,
which was a “store-bought” mask similar to one seen in “slasher” movies. No
one else had a similar mask; the others hid their faces with bandanas or a T-shirt.
Id. at 247.
        {¶ 5} Ronald Marinelli, the Newport Inn’s owner, was tending bar that
night. Several customers were in the bar, including Deborah Aziz, Herman Naze
Sr., Dennis Kotheimer, and Jimmie Lee Jones. Id.
        {¶ 6} Upon bursting into the bar, one of the gunmen ordered Naze to
“[g]ive me your fucking money.” Id. When Naze stated that he did not have any
money, the gunman shot him. Then Herring shot Aziz, who fell to the floor. She
managed to crawl away and hide behind a cooler and a trash can. She later




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described her assailant’s mask as “a hard plastic, like one of those Jason masks.”
Id.
       {¶ 7} Herring then walked around the end of the bar and approached
Marinelli and the cash register. He shot Marinelli four times in the stomach from
about five feet away. Marinelli managed to stay on his feet as Herring came
closer. 94 Ohio St.3d at 247, 762 N.E.2d 940. Herring told Marinelli, “Give me
your fucking money.” Despite his wounds, Marinelli obeyed, handing over the
cash in the register. Id. at 248. But Herring screamed that Marinelli had not
given him everything. As Herring threatened to “blow [Marinelli’s] brains out,”
Marinelli gave him money from a nearby drawer. Herring then screamed for
more money. Marinelli urged him to “[b]e cool” and told him that there was no
more. Herring responded by leveling his gun at Marinelli’s head. Id.
       {¶ 8} Marinelli reached into the drawer again and pulled out a gun. But
Marinelli was so weak that Herring easily took it away from him. Marinelli
collapsed.   Herring then said, “You ain’t dead yet, motherfucker,” and shot
Marinelli in the legs as he lay on the floor. Id.
       {¶ 9} After Herring shot Marinelli, Aziz heard Kotheimer say, “You
motherfucker.” Then she heard more shots. Marinelli saw Kotheimer get shot
but did not see who shot him. Nobody saw who shot Jones. Id.
       {¶ 10} Following the arrival of the police, the shooting victims were taken
to a Youngstown hospital. Naze, Jones, and Kotheimer died from their wounds.
Id.
                   II. Trial results and the mitigation hearing
       {¶ 11} At trial, Herring was convicted of three counts of complicity to
commit aggravated murder, two counts of attempted aggravated murder, two
counts of aggravated robbery, and firearm specifications. 94 Ohio St.3d at 248-
249, 762 N.E.2d 940. As to Count One, the murder of Jones, the jury found
Herring not guilty as the principal offender but guilty as an accomplice. Herring




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was also found guilty of three course-of-conduct death-penalty specifications that
were attached to each of the murder counts, pursuant to R.C. 2929.04(A)(5). Id.
at 249.
          {¶ 12} During the mitigation hearing, trial counsel presented evidence
showing that Herring’s accomplices did not receive the death penalty.          The
defense also presented the testimony of Deborah Herring, the defendant’s mother,
and Nicole Herring, the defendant’s sister.
          {¶ 13} Deborah testified that Herring has six brothers and sisters. She
testified that Herring had a good and loving relationship with his siblings and
continues to stay in touch with them. Herring helped with chores and helped take
care of his younger brothers and sisters when he was growing up. Deborah asked
the jurors to spare her son’s life.
          {¶ 14} Nicole testified that Herring helped to take care of his younger
brothers and sisters. She stated that she had a close relationship with Herring and
that they did numerous things together. Finally, Nicole asked the jury to spare her
brother’s life.
          {¶ 15} On rebuttal, Timothy Franken, an assistant prosecuting attorney,
testified that Antwan Jones, one of the accomplices, was originally charged
exactly the same as Herring. The death-penalty specifications, however, were
voluntarily dismissed against Jones because the prosecutors did not think that they
could prove them. Franken also testified that Adelbert Callahan was charged
exactly the same as Herring, but Callahan could not receive the death penalty
because he was a juvenile at the time of the crimes. Franken also mentioned that
Eugene Foose, another accomplice, was a juvenile. The two other accomplices
had had lesser culpability. Louis Allen did not shoot anyone; indeed, he ran away
as soon as the shooting started. Kitwan Dalton, the getaway driver, neither
entered the Newport Inn nor carried a weapon. 94 Ohio St.3d at 268, 762 N.E.2d
940.




                                         4
                                January Term, 2014




         {¶ 16} During closing arguments, trial counsel emphasized that Herring
had been convicted as an aider or abettor and that he had been found not guilty as
a principal offender in committing the murders.         Trial counsel also argued
regarding the disparity in sentencing that would exist if Herring were sentenced to
death when the state had not pursued death sentences for his accomplices. In
addition, counsel raised Herring’s youth as a mitigating factor; he was 18 at the
time of the offenses.
         {¶ 17} After the mitigation hearing, the jury recommended death for all
three aggravated murders. The trial court sentenced Herring to death. Id. at 249.
         {¶ 18} On February 27, 2002, this court affirmed Herring’s convictions
and death sentence.      Id. at 269.   The United States Supreme Court denied
certiorari. Herring v. Ohio, 537 U.S. 917, 123 S.Ct. 301, 154 L.Ed.2d 202 (2002).
                          III. Postconviction proceedings
                         A. Herring’s postconviction claim
         {¶ 19} On September 17, 1999, Herring filed his petition for
postconviction relief.    He requested discovery and an evidentiary hearing.
Herring’s primary claim challenged trial counsel’s effectiveness in failing to
conduct an adequate mitigation investigation prior to his mitigation hearing.
Herring presented affidavits and other documentary evidence in support of his
claim.
                   1. Affidavits from experts and family members
         {¶ 20} Dr. Jolie Brams, a psychologist, submitted an affidavit stating that
the jurors were presented “no meaningful psychological information” about
Herring’s “problematic functioning over the course of his life.” She stated that no
lay or expert testimony was presented that “would have given the jurors an
opportunity to understand the sociocultural, psychological, developmental and
intellectual factors that operated to bring Mr. Herring to that particular point in
time.”




                                          5
                             SUPREME COURT OF OHIO




       {¶ 21} Dr. Brams indicated that the testimony of Herring’s mother and
sister during the mitigation hearing presented a distorted picture of Herring’s
upbringing. As to their testimony, Dr. Brams stated: “The jurors only saw two
supposedly caring individuals which did nothing to educate them regarding the
marked dysfunction in Mr. Herring’s family and the amazingly dysfunctional role
models by whom this young [man] was raised. Instead, they were presented a
picture of a family that cared.”
       {¶ 22} Dr. Brams discussed her own evaluation of Herring’s family, his
history, and his past and present functioning that could have been presented
during mitigation.     She stated that Herring’s “childhood was remarkably
dysfunctional in almost every aspect.” She stated that Herring “was raised in an
environment in which basically every parental figure, caregiver, family member,
and associate was involved in illegal activities, significant drug and alcohol abuse,
and to whom the consequences of violating the law evoked little anxiety.” Dr.
Brams described Herring as a “ ‘feral child,’ who roamed the neighborhood
aimlessly, without any adult having meaningful or consistent concern.”
       {¶ 23} Dr. Brams stated that Herring began using marijuana and alcohol
on a frequent basis by the time he was 13 or 14. Herring’s active substance abuse
was a primary factor leading to his failure in school and his eventual decision to
drop out of school.
       {¶ 24} Herring’s family members introduced him to gangs and drug
dealing, which was described to Dr. Brams as “the family business.” Dr. Brams
added that Herring’s mother asked him to purchase drugs for her own
consumption and that his mother and other family members used drugs openly.
       {¶ 25} Dr. Brams stated that no psychometric tests were conducted prior
to trial assessing any aspect of Herring’s mental capacities. There was also no
exploration of his intellectual and academic capacity from other sources, such as
interviews with Department of Youth Services (“DYS”) personnel and public




                                         6
                                 January Term, 2014




school teachers or a review of his institutional records. Dr. Brams also stated that
a neuropsychological evaluation should have been conducted prior to trial to
establish whether Herring suffered from organic brain impairment.
        {¶ 26} Dr. Brams’s staff administered various tests to Herring.         Test
results on the Wechsler Adult Intelligence Scale-Third Edition (“WAIS-III”)
showed that Herring had a verbal IQ of 85, a performance IQ of 91, and a full-
scale IQ of 87. Results on the Beery Buktenica Developmental Test of Visual-
Motor Integration (“VMI”) placed Herring in the third percentile nationally and
showed his difficulty with visual-motor functioning.           Results on the Matrix
Analogies Test (“MAT”) showed that Herring has the perceptual-learning skills of
a ten year old.
        {¶ 27} Dr. Brams also indicated that Herring’s DYS records provided
information about Herring’s positive characteristics. She stated that the DYS
records “reflect that Mr. Herring was able to meet the expectations of the staff in
many areas and complete goals that were set out for him in terms of socialization
and education.”
        {¶ 28} Finally, Dr. Brams set forth her diagnoses of a number of
psychiatric disorders as defined by the Diagnostic and Statistical Manual of
Psychiatric Disorders (“DSM-IV”).         She concluded that Herring presents (1)
alcohol abuse, chronic, (2) cannabis abuse/dependence, (3) polysubstance
abuse/dependence, (4) depressive disorder, (5) personality disorder with
narcissistic and antisocial features, and (6) learning disabilities.
        {¶ 29} Dr. C. Ronald Huff, the Director of the School of Public Policy
and Management at Ohio State University, submitted an affidavit about Herring’s
gang involvement. Dr. Huff stated that Herring “grew up with a host of gang
members as role models, especially on his father’s side of the family.” He stated
that Herring became a gang member when he was 11 or 12 years old and that




                                           7
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Herring’s substance abuse, drug trafficking, and other crimes were greatly
influenced by his gang involvement.
       {¶ 30} Herring also presented affidavits from his paternal grandmother,
two aunts, two uncles, his sister Nicole, his mother, and a cousin.           These
affidavits discussed Herring’s gang involvement, his life as a drug dealer, his
mother’s drug use, and other family members who have been incarcerated.
Herring’s cousin and grandmother and an aunt and an uncle would have testified
at trial if they had been asked.
       {¶ 31} Herring’s sister, Nicole, stated that their grandmother took care of
her and Herring until he was about 12, when their grandmother moved out of their
home. Nicole indicated that their grandmother provided them with structure and
discipline. She was strict and made Nicole and Herring do chores and complete
their homework.
       {¶ 32} Herring’s mother, Deborah, stated that she has seven children by
four different fathers. Deborah said that she was overwhelmed with caring for her
children. Herring’s father had been shot to death over a drug dispute when
Herring was four years old. Deborah admitted that she has had a longstanding
drinking problem and had been addicted to crack for 12 years. She knew that
Herring sold crack but did not think that he had a substance-abuse problem.
                                   2. Dr. Darnall’s letter
       {¶ 33} Herring’s petition included a letter from Dr. Douglas Darnall, a
clinical psychologist, that had been sent to trial counsel before the mitigation
phase. At trial counsel’s request, Dr. Darnall had conducted pretrial testing of
Herring by administering the Minnesota Multiphasic Personality Inventory
(“MMPI-2”). Dr. Darnall told trial counsel in the letter that he had not had the
opportunity to conduct a clinical interview or a complete assessment and therefore
was “unable to derive any specific clinical conclusions.”




                                             8
                                January Term, 2014




       {¶ 34} Dr. Darnall’s letter reported that the results of the MMPI-2 were of
“questionable” validity. He stated that certain test results suggested that Herring
was “exaggerating his symptoms or not understanding the specific test items.”
Dr. Darnall added:


           The configuration of the clinical scales would suggest that
           Mr. Herring has made some discriminations in his
           responses.    The configuration would characterize Mr.
           Herring as a very suspicious individual who is likely to be
           hostile to authority figures. He is inclined to be rather
           impulsive, unreliable, egocentric, and irresponsible. Others
           may perceive him as suspicious, hostile, and hypersensitive
           to the reactions of others. * * * It is possible that Mr.
           Herring may have a delusional disorder that could be
           distorting his perceptions and interpretations as to what is
           going on around him. He may feel socially isolated and
           have persecutory ideas.


       {¶ 35} Dr. Brams submitted an addendum affidavit that responded to Dr.
Darnall’s report. Dr. Brams stated: “Even a cursory perusal of Mr. Herring’s
MMPI-2 profile would indicate [the] need for further neuropsychological and
psychiatric follow-up in terms of evaluation and testing.” She added: “Defense
counsel did not follow-up this MMPI-2 report with any further evaluation of the
defendant. Simply stated, the sole use of an MMPI * * * to determine mitigation
factors or lack thereof is grossly limited and in no way could fully describe the
functioning or history of that individual.”




                                          9
                               SUPREME COURT OF OHIO




                                  3. Hrdy’s affidavit
        {¶ 36} The affidavit of Thomas Hrdy, the mitigation specialist engaged by
Herring’s attorneys prior to the trial, discussed his employment and his meeting
with counsel in preparing for Herring’s mitigation:


                    I believe that I was first contacted by the trial
            attorneys Mr. Van Brocklin and Mr. Zena around the first
            week of August, 1997. As it turned out, this did not allow
            adequate time for me to collect the necessary records for a
            full investigation of the case, such as school records and
            medical records. I met with the attorneys only once, at our
            initial meeting.    I do not know what information the
            attorneys collected. I do not know if the attorneys followed
            up on my suggestion to bring a psychologist in to evaluate
            Willie. I do not know these things because the attorneys
            did not share the information with me, and we did not have
            subsequent meetings after our initial one.


        {¶ 37} In his affidavit, Hrdy stated that he had interviewed Herring four
times and Herring’s mother once.          He did not interview any other family
members. Hrdy stated that due to time constraints, he was unable to complete
extensive interview research. He did not recall “the specific attempts to collect
specific records, such as Ohio Department of Youth Services or Mahoning
County Human Services.” Hrdy added: “I felt like before I knew it, I was over
my head in terms of time necessary to complete the investigation. I do not recall
if I told trial counsel that I was running out of time.”
        {¶ 38} Hrdy said that he had provided mitigation services “in two or three
other capital cases” prior to Herring’s case. He concluded: “Looking back now




                                          10
                                January Term, 2014




on the work I did for the Herring case, I feel that I did a substandard job of
mitigation investigation. This is primarily due to the fact that I underestimated
the amount of time which was needed to contact all of the necessary mitigation
witnesses and locate all the necessary resources and records.”
                                 4. Hall’s affidavit
       {¶ 39} In another affidavit attached to the petition, Dorian Hall, the
supervisor of the mitigation section of the Office of the Ohio Public Defender,
analyzed the deficiencies in Hrdy’s mitigation investigation. Hall stated that Hrdy
obtained education records and attempted to obtain records from Southside
Medical Center, “but did not appear to make any attempts to obtain additional
records.” Hall also stated that Hrdy interviewed only Herring and his mother and
neglected to interview various family members, friends, and professionals who
could have provided detailed information about Herring’s life. Hall also stated
that there was “a family history of substance abuse and drug dealing, gang
involvement, criminal activity, neglect and lack of nurturing” that was not
properly investigated.
                      B. Trial court denies Herring’s petition
       {¶ 40} On January 6, 2003, the trial court granted the state’s motion for
summary judgment and overruled Herring’s requests for discovery and an
evidentiary hearing. The trial court rejected Herring’s claim that counsel were
ineffective in conducting their mitigation investigation, stating:


                     It is clear from the transcript of the sentencing
           phase that counsel elected to present positive evidence from
           the Defendant’s family, and not to present negative
           evidence concerning the Defendant’s childhood. At this
           point, one can only speculate as to what effect, if any,
           negative evidence would have had in the jury’s




                                         11
                             SUPREME COURT OF OHIO




           deliberations. Tactical decisions and strategic choices must
           be reviewed with the strong presumption that effective
           legal counsel is rendered. * * * A different opinion, which
           varies from the theory used at trial does not depict
           ineffective assistance of counsel. * * *
                    In the instant case, Defendant simply suggests and
           speculates that trial counsels [sic] failure to present an
           alternative   theory,   specifically,   negative   testimony
           concerning his childhood, amounts to ineffective assistance
           of counsel. This Court does not agree, and the Defendant is
           not entitled to a hearing as to these claims.


       {¶ 41} The trial court also rejected Herring’s claim that trial counsel were
ineffective by failing to hire a neuropsychologist to examine him. The trial court
noted that Dr. Darnall prepared and submitted a report and did “not recommend
that the Defendant be examined by a neuro-psychologist. Additionally, there
were specific findings made by Dr. Darnall that were not favorable to the
Defendant.”
                           C. Court of appeals remands
       {¶ 42} On appeal, the court of appeals held that the trial court had erred in
granting summary judgment to the state. 7th Dist. Mahoning No. 03-MA-12,
2004-Ohio-5357, ¶ 2, 115. The court reviewed the postconviction evidence that
the defense presented in support of its ineffectiveness claim, id. at ¶ 70-91, and
compared it with the meager amount of evidence that had been presented during
mitigation, id. at ¶ 60-62. The court held that the trial court should not have
rejected Herring’s arguments on the ground that trial counsel made a tactical
decision to present only (minimal) positive mitigation evidence without first
considering whether counsel had made an “intelligent strategic decision” after




                                         12
                                January Term, 2014




conducting a proper investigation. Id. at ¶ 99-100, citing Williams v. Taylor, 529
U.S. 362, 396, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000) (holding that counsel has
the duty to conduct a thorough investigation of a capital defendant’s background).
The appellate court further determined that “[t]here is little evidence herein
documenting the extent of Appellant’s trial counsels’ reasoning for their
investigative decisions.” Id. at ¶ 114. The court observed that “Hrdy’s affidavit
is inconclusive as to whether Appellant’s trial counsel actually knew of Hrdy’s
investigation’s deficiencies.” Id. at ¶ 102.
       {¶ 43} The court remanded the case to the trial court “to conduct an
evidentiary hearing relative to Appellant’s trial counsels’ efforts in advance of
their decision to present only Appellant’s positive mitigation history.” Id. at
¶ 114. The court added: “Without a hearing to determine the extent of the
mitigation evidence before Appellant’s trial counsel and their investigative
efforts, Appellant’s postconviction exhibits may simply present an alternative
mitigation tactic.” Id. at ¶ 104. In ordering an evidentiary hearing, the court
specifically directed the trial court to “assess whether Appellant’s counsel were
apprized of Hrdy’s investigation’s shortcomings. Only then could counsel have
made a reasoned decision to cease investigating.” Id. at ¶ 116.
                        D. Trial court’s hearing on remand
       {¶ 44} On August 28 and December 4, 2006, the trial court conducted an
evidentiary hearing, at which Gary Van Brocklin and Thomas Zena, Herring’s
trial attorneys, and Dorian Hall testified.       Documentary evidence was also
presented. Hrdy did not testify at the hearing.
                            1. Van Brocklin’s testimony
       {¶ 45} Van Brocklin had been lead counsel at Herring’s trial.            Van
Brocklin testified that after the defense had a difficult time obtaining a mitigation
specialist, the Office of the Ohio Public Defender had identified Hrdy as a




                                         13
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possible mitigation specialist. Hrdy was then contacted and hired as the defense
mitigation specialist.
       {¶ 46} Counsel’s first meeting with Hrdy in early September 1997 was
four-and-one-half hours long. Van Brocklin recalled, “Mr. Hrdy was to obviously
investigate and determine if we could find mitigation for Mr. Herring in the event
that there was a conviction of capital specifications.” Van Brocklin could not
recall whether defense counsel met with Hrdy again or only discussed the case
over the phone.
       {¶ 47} Van Brocklin stated that Hrdy never told defense counsel that “he
in any way fell short of the mark” and always represented himself as an expert.
Van Brocklin said, “I believed at the time that he had done all of the work
necessary to look into Mr. Herring’s background. * * * I believe, that had Mr.
Hrdy requested additional time, we would’ve immediately filed a motion for it,
and I’m quite confident that Judge Durkin would’ve allowed us the time.”
       {¶ 48} Van Brocklin also stated that Hrdy had had sufficient time to
conduct an adequate mitigation investigation.     Hrdy was hired in August or
September 1997, and the start of the trial was delayed because a mistrial was
declared during jury selection. The trial then eventually commenced on January
5, 1998, and the mitigation proceedings began on February 14, 1998.
       {¶ 49} Van Brocklin testified that he and Zena “knew a lot of negative
information” about Herring “through our own investigation and through criminal
records and those kinds of things that were supplied to us during the lengthy
discovery process.” Van Brocklin could not recall specific information that they
had known about Herring’s background because the case files had been
transferred to the public defender’s office. Yet Van Brocklin had known that
Herring had a prior juvenile record and that members of his family had criminal
records. Van Brocklin also recalled that a subpoena had been issued for Herring’s
confinement records to show that he had behaved himself during incarceration.




                                       14
                               January Term, 2014




But defense counsel decided not to use that information because the records
showed Herring’s involvement in “a death threat or a fight.”
       {¶ 50} Van Brocklin also stated that the defense had hired Dr. Darnall.
Dr. Darnall provided defense counsel with “a report that didn’t work well, or was
not very definitive.” He did not perform any testing for neurological impairment.
       {¶ 51} Van Brocklin stated that he and Zena decided to present “positive
mitigation evidence.” He also stated, “I hammered home in argument * * * that
Mr. Herring had not been convicted as a principal offender in this matter.” Van
Brocklin explained that the decision to present positive evidence in mitigation had
“a lot to do with the fact that we had picked two juries, and the second jury was
far more conservative that the first jury panel was, and both Tom and I did not
think that negative information would have worked with that particular jury
panel.” He added, “I thought that any kind of information that you would give the
second jury panel that Mr. Herring had been involved in a life of crime would
simply be more ammunition for them to find a death verdict.”
                               2. Zena’s testimony
       {¶ 52} Zena had been co-counsel at Herring’s trial and had the primary
responsibility for preparing mitigation. Zena testified that the defense initially
was prepared to engage a different mitigation specialist, but after that person
could not take the job, trial counsel hired Hrdy. Zena did not believe that they
developed a theory of mitigation with Hrdy. Zena stated, “I think we said let’s
see what we have and try to put the best foot forward to save [Herring], whatever
that might be.” As to Hrdy’s role, Zena said that although “it’s the lawyer’s
responsibility to present the mitigation,” people in Hrdy’s position are called
mitigation specialists because it is their job to “go out and find and give ideas on
how they think something should be presented.”




                                        15
                             SUPREME COURT OF OHIO




       {¶ 53} Zena stated that he and Van Brocklin had talked to Hrdy on the
phone as Hrdy’s mitigation investigation progressed. Counsel did not have a
timetable for getting information from Hrdy. Zena testified:


           [I]t was like if you need anything, call us, and we had our
           normal discussions.     If there’s anything you’re having
           trouble with or need, call us. And I don’t think there was
           ever a time when we weren’t accessible to him. I know
           every time he tried to reach me, I was. Likewise, he was
           accessible.


       {¶ 54} Zena testified that he had met Herring’s mother on a few occasions
and got to know Herring’s sister. Zena stated that he spoke to Herring’s mother
about “arranging a meeting with anybody she thought would be helpful with
mitigation, and we met at their home.” Herring’s mother never told Zena that she
had been a drug addict during a large part of Herring’s life.
       {¶ 55} Zena also had spoken to Herring about mitigation. He stated that
Herring told him nothing negative about the family, because Herring “is a person
that did not accent the negative about any family member or himself.” Zena
stated, “When we got to the mitigation phase, he was cooperative in the sense of
knowing we—what we were going to do, but he was not forthcoming with any
information.”    But Herring did not put any restrictions on trial counsel’s
presentation of mitigation evidence.
       {¶ 56} Zena stated that he and Van Brocklin made a “conscious choice to
* * * put on good things about him” and to emphasize that Herring was not a
principal offender. Zena explained that this was “an awful case as cases go. * * *
This was mayhem in a bar where people wound up dead, people wound up shot,
bullets all over the floor.” Moreover, the victims were innocent bystanders who




                                         16
                                 January Term, 2014




were not “involved in any transgressions with any of the individuals who came
in.”   Thus, Zena said that the goal was “separating [Herring] out as a non
principal offender, not responsible for the death of anyone, and showing whatever
I could of the other side of him.”
                                3. Billing statements
        {¶ 57} Defense exhibit A was Van Brocklin’s billing statement, submitted
in February 1998, for serving as Herring’s defense counsel at trial. Hrdy’s billing
statement and its cover letter were attached.           Hrdy’s letter included the
observation, “This has been a most difficult case to find mitigation on as you well
know[.] I know you did the best you could with the little I provided.” Hrdy’s
billing statement showed that he sent a bill to counsel for time and expenses
totaling $1,501.30.
                                 4. Hall’s testimony
        {¶ 58} Hall explained the responsibilities of a mitigation specialist in
conducting an investigation. Hall stated that Hrdy’s invoice showed that he had
completed approximately 30 hours of work. Hall did not believe that this was an
adequate amount of time to properly conduct a mitigation investigation for
Herring.
                   E. Trial court again denies Herring’s petition
        {¶ 59} On September 26, 2008, the trial court again denied Herring’s
petition for postconviction relief.
        {¶ 60} After reviewing the evidence presented at the hearing, the trial
court made the following ruling:


                      Based on this evidence, it is abundantly clear that
           Thomas Hrdy never advised trial counsel that his
           investigation was not complete, and never asked them for
           additional time to complete it. Trial counsels [sic] decision




                                         17
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           to present positive mitigation was reasonable, based on an
           objective review of counsels [sic] performance, measured
           with reasonableness under professional norms, including a
           context-dependent consideration of the challenged conduct
           as seen from counsels [sic] perspective at the time of that
           conduct.
                      In addition, consistent with the Trial Court’s
           opinion that granted summary judgment to the State, “one
           can only speculate as to what effect, if any, negative
           evidence would have had in the jury’s deliberations.”


               F. Court of appeals orders a new sentencing hearing
       {¶ 61} On appeal following this ruling, the court of appeals held that the
trial court abused its discretion in finding that trial counsel’s decision to present
only positive mitigation evidence was reasonable. 7th Dist. Mahoning No. 08-
MA-213, 2011-Ohio-662, ¶ 90. The court stated: “Trial counsel can make the
decision to forego the presentation of evidence, but only after a full investigation.
* * * Only after completing a full investigation can counsel make an informed,
tactical decision about what information to present in their client’s case.” Id. at ¶
55, citing Wiggins v. Smith, 539 U.S. 510, 521, 123 S.Ct. 2527, 156 L.Ed.2d 471
(2003), and Williams, 529 U.S. 362, 120 S.Ct. 1495, 146 L.Ed.2d 389.
       {¶ 62} The court stated that information about Herring’s background in
the postconviction affidavits


           brought to light appellant’s deeply troubled childhood, his
           complete lack of any positive role models, his substance
           abuse problems, his depression, his low IQ, and his
           possible organic brain impairment.          These areas of




                                         18
                                January Term, 2014




           appellant’s life, had they been investigated and explored
           fully, are all very significant factors to be weighed and
           considered in determining what mitigation evidence to
           present. And counsel did not have this information before
           them when they made the decision to present only positive
           mitigation evidence.


Id. at ¶ 79. The court then concluded that “counsel could not have made an
intelligent strategic decision without the proper investigation before them.” Id.
        {¶ 63} The court also stated that investigations into mitigating evidence
“ ‘ “should comprise efforts to discover all reasonably available mitigating
evidence.” ’ ” (Emphasis sic.) Id. at ¶ 82, quoting Wiggins at 524, quoting
American Bar Association (“ABA”) Guidelines for the Appointment and
Performance of Counsel in Death Penalty Cases, Guideline 11.4.1(C) (1989).
The court determined that trial counsel’s testimony showed that they had failed to
meet this standard. Id. at ¶ 82. The court also noted that Hrdy admitted that his
investigation was “substandard” and that he did not complete many of the tasks
that he should have in investigating Herring’s background. Id. at ¶ 79. But the
court stated that it was trial counsel’s duty to ensure that a complete investigation
was conducted and that they could not simply rely on Hrdy’s investigation. Id. at
¶ 82.
        {¶ 64} In ordering a new sentencing hearing, the court of appeals stated
that the undiscovered mitigating evidence “ ‘ “might well have influenced the
jury’s appraisal” ’ ” of Herring’s culpability. Id. at ¶ 90, quoting Rompilla v.
Beard, 545 U.S. 374, 393, 125 S.Ct. 2456, 162 L.Ed.2d 360 (2005), quoting
Williams, 529 U.S. at 398, 120 S.Ct. 1495, 146 L.Ed.2d 389. The court of appeals
also stated that “the probability of a different sentence if counsel had presented
the evidence is ‘ “sufficient to undermine confidence in the outcome” ’ reached




                                         19
                             SUPREME COURT OF OHIO




by the jury.” Id., quoting Rompilla at 393, quoting Strickland, 466 U.S. at 694,
104 S.Ct. 2052, 80 L.Ed.2d 674.
                               IV. Issues on appeal
       {¶ 65} The cause is now before this court following the acceptance of the
state’s discretionary appeal on the following three propositions of law:


           I.   Defense counsel’s performance is constitutionally
           effective under the federal and state Constitutions where,
           absent   any    knowledge      of   a   mitigation    expert’s
           shortcomings, they proceed reasonably in light of the
           information that they have obtained, and despite the fact
           that a mitigation expert failed to complete several tasks in
           preparation for the sentencing phase (of a capital trial).
           II. Capital defendants do not have a federal constitutional
           right to the effective assistance of a mitigation specialist;
           therefore, a mitigation specialist’s deficiencies cannot be
           imputed to trial counsel without having sufficient
           knowledge of those deficiencies.
           III. An appellate court errs in finding that trial counsel was
           constitutionally ineffective without determining whether or
           not the defendant suffered actual prejudice as a result of
           trial counsel’s performance, as set forth in Strickland v.
           Washington.


                                    V. Analysis
           A. Deficient mitigation investigation (Proposition of Law I)
       {¶ 66} The state argues that trial counsel were not deficient in presenting
positive mitigating information about the defendant. The state contends that trial




                                         20
                               January Term, 2014




counsel performed reasonably even though the defense mitigation specialist failed
to conduct a complete investigation, because counsel were unaware of those
shortcomings.
                                1. Legal standards
       {¶ 67} To establish a violation of the Sixth Amendment right to counsel,
Herring must demonstrate that counsel’s performance was deficient and that the
deficient performance prejudiced him. Strickland, 466 U.S. at 687, 104 S.Ct.
2052, 80 L.Ed.2d 674.
       {¶ 68} In assessing counsel’s investigation, an objective review of
counsel’s performance must be conducted in light of professional norms
prevailing when the representation took place. Bobby v. Van Hook, 558 U.S. 4, 7,
130 S.Ct 13, 175 L.Ed.2d 255 (2009); Strickland at 688. Under the deficient-
performance prong, the court should “indulge a strong presumption that counsel’s
conduct falls within the wide range of reasonable professional assistance.” Id. at
689.
       {¶ 69} Counsel in a capital case have an “obligation to conduct a thorough
investigation of the defendant’s background” to determine the availability of
mitigating evidence. Williams, 529 U.S. at 396, 120 S.Ct. 1495, 146 L.Ed.2d 389.
Counsel’s “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.’ ” (Emphasis
sic.) Wiggins, 539 U.S. at 524, 123 S.Ct. 2527, 156 L.Ed.2d 471, quoting ABA
Guidelines for the Appointment and Performance of Counsel in Death Penalty
Cases, Guideline 11.4.1(C) (1989).


                This constitutionally required background investigation
         is necessary to enable counsel to make strategic choices
         about presenting a mitigation defense. * * * Indeed, the




                                        21
                             SUPREME COURT OF OHIO




         deference owed to counsel’s strategic judgments about
         mitigation is directly proportional to the adequacy of the
         investigations supporting such judgments.         Accordingly,
         when evaluating the reasonableness of counsel’s mitigation
         strategy in a capital case, “a reviewing court must consider
         the reasonableness of the investigation said to support that
         strategy.”


Jells v. Mitchell, 538 F.3d 478, 492 (6th Cir.2008), quoting Wiggins at 527.
                                    2. Discussion
       {¶ 70} The state argues that defense counsel proceeded reasonably in
presenting positive mitigating evidence about Herring to the jury. The state
recognizes that Wiggins required that a mitigation investigation be completed.
The state argues, however, that it was professionally reasonable for counsel to
believe that Hrdy had completed his investigation prior to sentencing and that
defense counsel did not have to ensure for themselves that the mitigation
investigation was accurate and complete.
                            (a) Inadequate investigation
       {¶ 71} The affidavits and testimony presented during postconviction
proceedings show that neither Hrdy nor trial counsel obtained detailed
information about Herring’s background.          Thus, trial counsel did not have
detailed knowledge about Herring’s parental neglect, gang involvement, or life as
a drug dealer. Trial counsel also does not appear to have known that Herring’s
father had been murdered when Herring was a young child or that his mother had
been a drug addict during a large part of her life.
       {¶ 72} Hrdy, the mitigation specialist, admits that he did a “substandard
job of mitigation investigation.” He acknowledges that he failed to interview
family members.       Hrdy also failed to obtain Herring’s DYS records, police




                                          22
                               January Term, 2014




records, or other records that might have shed light on Herring’s background. It
appears that Hrdy obtained only Herring’s education records and attempted to
obtain part of his medical records. Hrdy’s billing statement also suggests that he
did not put in the time necessary to conduct an adequate investigation.
       {¶ 73} Moreover, Herring had not been evaluated and tested to explore
the psychological, developmental, and intellectual factors in his background. Dr.
Brams conducted IQ and other psychometric tests that uncovered a wealth of
information about Herring.
       {¶ 74} The state responds to these concerns by pointing out that defense
counsel employed Dr. Darnall, a clinical psychologist, and obtained a report from
him. But Dr. Darnall administered only the MMPI-2 to Herring. Dr. Darnall
reached some tentative conclusions about Herring, including observing: “It is
possible that Mr. Herring may have a delusional disorder that could be distorting
his perceptions and interpretations as to what is going on around him.” Yet
defense counsel did not arrange for follow-up psychological evaluations or other
testing of Herring.
       {¶ 75} Herring’s trial counsel, Van Brocklin, testified that he and Zena
“knew a number of negative things through our own investigation and through
criminal records and those kinds of things that were supplied to us during the
lengthy discovery process.” Yet Van Brocklin and Zena were unable to recall
many specific details about their knowledge because they no longer had access to
Herring’s case file.
       {¶ 76} Here, the mitigation investigation was less comprehensive than the
investigation that the Supreme Court found deficient in Wiggins. In that case,
defense counsel had arranged for a psychologist to run a number of tests on the
defendant. 539 U.S. at 523, 123 S.Ct. 2527, 156 L.Ed.2d 471. Counsel also had
“had available to them a written PSI [presentence-investigation report], which
included a one-page account of Wiggins’ ‘personal history’ noting his ‘misery as




                                        23
                            SUPREME COURT OF OHIO




a youth,’ quoting his description of his own background as ‘ “disgusting,” ’ and
observing that he spent most of his life in foster care.” Id. Counsel also had
tracked down records kept by the Baltimore City Department of Social Services
(“DSS”) that documented various placements in foster care. Id. The PSI and the
DSS records revealed that Wiggins’s mother was a chronic alcoholic, Wiggins
had been “shuttled from foster home to foster home and displayed some
emotional difficulties,” he had frequent, lengthy absences from school, and “on at
least one occasion, his mother left him and his siblings alone for days without
food.” Id. at 525. Despite these leads, counsel did not investigate further. The
Supreme Court remarked that “any reasonably competent attorney would have
realized that pursuing these leads was necessary to making an informed choice
among possible defenses.” Id. Had counsel investigated further, the court stated,
they might well have discovered the severe physical and sexual abuse that the
defendant had suffered from his mother and while in the care of a series of foster
parents. Id. at 516, 525.
       {¶ 77} In Porter v. McCollum, 558 U.S. 30, 40, 130 S.Ct. 447, 175
L.Ed.2d 398 (2009), the Supreme Court held that counsel’s failure to interview
the defendant’s family members and to obtain school, medical, and military
service records made his representation constitutionally deficient.    The court
stated that “like the counsel in Wiggins, [defense counsel] ignored pertinent
avenues for investigation of which he should have been aware,” and it concluded
that the “decision not to investigate did not reflect reasonable professional
judgment.” Id.
       {¶ 78} Moreover, this is not a case like Van Hook, in which the Supreme
Court held that counsel were not deficient in failing to dig deeper into the
defendant’s background. In Van Hook, the defense had called eight mitigation
witnesses and the defendant had made an unsworn statement. 558 U.S. at 5, 130
S.Ct. 13, 175 L.Ed.2d 255. As for the mitigation investigation, the court noted




                                       24
                               January Term, 2014




that defense counsel had contacted their lay witnesses “early and often” before
trial. Id. at 9. Counsel spoke nine times with the defendant’s mother, twice with
an aunt who lived with the family and often cared for Van Hook as a child, and
three times with a family friend. Id. They also were in touch with their two
expert witnesses and reviewed the defendant’s military records. After reviewing
his military records, they met with a representative from the Veteran’s
Administration seven weeks before trial. Id.
       {¶ 79} Despite all the evidence that defense counsel had uncovered and
presented, Van Hook argued that his counsel were deficient by not interviewing
other family members—his stepsister, two uncles and two aunts—as well as a
psychiatrist who had once treated his mother. Id. at 11. In rejecting this claim,
the Supreme Court stated that “there comes a point at which evidence from more
distant relatives can reasonably be expected to be only cumulative.” Id. Thus, the
court concluded, “it was not unreasonable for his counsel not to identify every
other living family member or every therapist who once treated his parents.” Id.
       {¶ 80} The investigation in this case was incomplete because counsel
failed to interview witnesses and obtain records about Herring’s dysfunctional
childhood, gang involvement, substance abuse, and his mother’s drug addiction.
Defense counsel also failed to ensure that Herring was adequately evaluated and
tested by a psychologist. Thus, this is not a case in which information about
Herring’s background that was not uncovered would have been merely
cumulative.
       {¶ 81} Moreover, trial counsel’s decision not to expand their investigation
fell short of the standards for capital defense work articulated by ABA guidelines.
The Supreme Court of the United States has stated that the ABA standards that
were in effect at the time of trial are guides to determining what is reasonable.
Van Hook, 558 U.S. at 8-9, 130 S.Ct. 13, 175 L.Ed.2d 255. The 1989 ABA
guidelines that were in effect at the time of Herring’s trial called for Herring’s




                                        25
                             SUPREME COURT OF OHIO




counsel “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, Guideline 11.4.1(C) (1989).
       {¶ 82} The 1989 guidelines provided detailed guidance as to counsel’s
investigative responsibilities.   They stated that “[a]s soon as is appropriate,”
counsel should


           [c]ollect information relevant to the sentencing phase of
           trial including, but not limited to: medical history (mental
           and physical illness or injury of alcohol and drug use, birth
           trauma and developmental delays); educational history
           (achievement,     performance            and   behavior)     special
           educational needs (including cognitive limitations and
           learning disabilities); military history (type and length of
           service, conduct, special training); employment and
           training history (including skills and performance, and
           barriers to employability); family and social history
           (including physical, sexual or emotional abuse); prior adult
           and    Juvenile   record;        prior    correctional    experience
           (including    conduct       or      supervision     and     in   the
           institution/education or training/clinical services); and
           religious and cultural influences.


Id. at Guideline 11.4.1(D)(2)(C).
       {¶ 83} Counsel’s performance fell below these well-defined norms.
Counsel failed to ensure that a comprehensive investigation was conducted into
Herring’s background, obtaining only rudimentary information about Herring’s




                                             26
                                 January Term, 2014




childhood, substance abuse, gang involvement, and psychological makeup. Based
on these failures, we conclude that counsel did not conduct an adequate
investigation into Herring’s background before the mitigation hearing started.
                 (b) Defense strategy to introduce positive mitigation
       {¶ 84} The state argues that trial counsel made a “strategic decision” to
present positive mitigating evidence. Van Brocklin testified that they decided to
present only positive mitigation because some of the jurors appeared to lean in
favor of the death penalty. He stated that “any kind of information * * * that Mr.
Herring had been involved in a life of crime would simply be more ammunition
for them to find a death verdict.”
       {¶ 85} The state also points to Van Brocklin’s statement that trial counsel
“knew a number of negative things” about Herring and wanted to keep them from
the jury. Although his recollection was imperfect, Van Brocklin testified that they
knew about Herring’s prior juvenile record and that members of Herring’s family
had criminal records. Trial counsel also employed Dr. Darnall, who conducted
some pretrial testing of Herring, though the scope of Dr. Darnall’s evaluation was
quite limited.
       {¶ 86} The state invokes Burger v. Kemp, 483 U.S. 776, 107 S.Ct. 3114,
97 L.Ed.2d 638 (1987), for the proposition that counsel’s decision to keep
negative information from the jury was a sound trial strategy and did not
necessitate a full mitigation investigation. In Burger, the Supreme Court upheld
the propriety of a defense decision not to present any mitigating evidence on
behalf of the defendant. The court rejected claims that defense counsel was
deficient by not pursuing an all-out investigation into the defendant’s background
in search of mitigating evidence. Id. at 794. The court stated that the limited
investigation conducted was reasonable because counsel “did interview all
potential witnesses who had been called to his attention,” and discovered little
that was helpful and much that was harmful. Id. at 794-795.




                                          27
                            SUPREME COURT OF OHIO




       {¶ 87} The state also cites Scott v. Mitchell, 209 F.3d 854 (6th Cir.2000),
in arguing that trial counsel could reasonably have presented only positive
mitigation without conducting a full mitigation investigation. In Scott, defense
counsel pursued a residual-doubt strategy and presented no mitigating evidence
other than Scott’s unsworn statement to the jury.          Id. at 880.     In state
postconviction proceedings, the defense presented evidence showing that counsel
had failed to contact family members who would have told them that the
defendant’s parents were alcohol and drug abusers, the defendant grew up in
severe poverty, and he was exposed to an exceedingly violent environment during
his upbringing. See State v. Scott, 63 Ohio App.3d 304, 309-311, 578 N.E.2d 841
(8th Dist.1989).
       {¶ 88} The Sixth Circuit Court of Appeals stated: “Scott’s penalty-phase
attorneys would certainly have been well-advised to conduct more research into
mitigating factors than they did.” 209 F.3d at 881. But the court declined to find
that counsel were ineffective by failing to conduct a more thorough investigation.
The court noted in dicta that counsel’s decision to pursue a residual-doubt strategy
in the case was not unreasonable when counsel had conducted research into the
available mitigating testimony and wanted to avoid opening the door to evidence
of the defendant’s extensive criminal history. Id. at 880-882.
       {¶ 89} Unlike Burger, Herring’s counsel did not talk to every witness who
was brought to their attention and did not have a psychologist conduct a
comprehensive psychological evaluation of the defendant. Trial counsel also did
not review Herring’s DYS records and other records that would have provided
information about his dysfunctional background. As for the applicability of Scott,
the Sixth Circuit has since held that incomplete mitigation investigations like
those in that case are legally inadequate. In Goodwin v. Johnson, 632 F.3d 301
(6th Cir.2011), defense counsel had presented a residual-doubt strategy like that
in Scott. Counsel had failed, however, to speak to most of Goodwin’s relatives,




                                        28
                               January Term, 2014




had not reviewed his school records, and had not had him evaluated. Id. at 324.
Had counsel interviewed these witnesses and examined school and juvenile
records, the court stated that they would have learned that he was abused by his
drug-using mother, performed poorly in school, and had psychological problems.
Id. The court held that counsel’s decision to forgo presenting mitigating evidence
was not an informed decision and that counsel’s performance was inadequate. Id.
at 325-326. See also Foust v. Houk, 655 F.3d 524, 534-536 (6th Cir.2011) (partial
but incomplete mitigation investigation deemed inadequate); Mason v. Mitchell,
543 F.3d 766, 780 (6th Cir.2008) (same); Jells, 538 F.3d at 496 (same).
       {¶ 90} Herring acknowledges that a decision by trial counsel to present
only positive mitigation can be a sound trial strategy “in the right case.” Herring
cites Wiggins in arguing that trial counsel’s decision to pursue a positive-
mitigation theory can properly be made only after counsel has conducted a full
mitigation investigation.   We agree.     Thus, counsel’s decision to pursue a
positive-mitigation theory was not justified because it was made before an
adequate investigation had been conducted into Herring’s background.
              (c) Trial counsel’s responsibility for the investigation
       {¶ 91} The state argues that trial counsel were not ineffective because
they were unaware that Hrdy had failed to conduct an adequate investigation.
Thus, the state asserts that it was professionally reasonable for counsel to believe
that Hrdy had completed his investigation and to rely on his status as a mitigation
expert rather than ensuring for themselves that the investigation was accurate and
complete.
       {¶ 92} The state cites Drummond v. Houk, 761 F.Supp.2d 638 (N.D.Ohio
2010), aff’d on other grounds, 728 F.3d 520 (6th Cir.2013), vacated and
remanded, sub nom. Robinson v. Drummond, ___ U.S. ___, 134 S.Ct. 1934, 188
L.Ed.2d 957 (2014), in arguing that trial counsel were not responsible for Hrdy’s
failure to conduct an adequate investigation. In Drummond, Dr. John Fabian, a




                                        29
                             SUPREME COURT OF OHIO




clinical psychologist, at the penalty phase of the trial provided mitigating
testimony about the defendant’s background and gang involvement. Id. at 695-
696. But later during mitigation, Dr. Fabian testified that he was “not a gang
expert,” when he was questioned about the environmental factors in a gang
atmosphere.    Id. at 696.     Dr. Fabian also provided other testimony about
Drummond’s gang involvement that was not helpful to the defense. Id. at 696-
697.
       {¶ 93} During federal habeas proceedings, Drummond claimed that trial
counsel had been ineffective for failing to hire a “gang expert,” for failing to
prepare Dr. Fabian for testimony, and for failing to conduct a complete
investigation. Id. at 702. During habeas proceedings, Dr. Fabian stated that he
had not had time to prepare for trial and had been unprepared to testify. Id. at
697, 699-700. Defense counsel responded that Dr. Fabian had not expressed
concerns to them about having had insufficient time to prepare his testimony. Id.
at 703. Defense counsel also stated that based upon Dr. Fabian’s representations
regarding his credentials and experience, they had believed that Dr. Fabian could
testify as effectively as any “gang expert.” Id. at 702.
       {¶ 94} In rejecting Drummond’s ineffectiveness claims, the court stated
that “it was reasonable for counsel to rely on Dr. Fabian’s self-described
experience with gang members and to presume that Dr. Fabian had sufficient time
to prepare for his trial testimony absent any credible assertions to the contrary.”
Id. at 703. The court concluded that “counsel cannot be held responsible for the
misrepresentations or omissions of Dr. Fabian.” Id.
       {¶ 95} The state argues that as in Drummond, Hrdy never told defense
counsel that his investigation was incomplete or that he needed more to time to
complete it.    Thus, the state argues that defense counsel cannot be held
responsible for Hrdy’s misrepresentations or omissions. There are important
differences between the two cases.       In Drummond, the court focused on the




                                         30
                                January Term, 2014




testimony of a single witness. In contrast here, Hrdy, the mitigation specialist,
was responsible for a full investigation of the case by collecting records,
interviewing witnesses, and providing an expert-witness list.
       {¶ 96} The state also argues that trial counsel could reasonably have relied
on Hrdy’s expertise as a mitigation expert. Van Brocklin testified that the defense
obtained Hrdy’s name through the state public defender’s office and that Hrdy
“always represented himself as an expert.” Trial counsel’s reliance on Hrdy’s
expertise as a mitigation specialist was not the same as counsel’s reliance on Dr.
Fabian’s expertise in Drummond. Dr. Fabian was a clinical psychologist and
counsel should be able to rely on a psychologist’s professional representations.
See Clark v. Mitchell, 425 F.3d 270, 285 (6th Cir.2005) (it was not unreasonable
for counsel, untrained in the field of mental health, to rely on the opinion of a
clinical psychologist).
       {¶ 97} Additionally regarding the state’s claim that counsel could
reasonably have relied on Hrdy’s expertise, it is instructive that the 1989 ABA
guidelines did not mention mitigation specialists. Not until the 2003 edition do
the ABA guidelines call for the hiring of a mitigation specialist as part of the
defense team. See ABA Guidelines for the Appointment and Performance of
Defense Counsel in Death Penalty Cases, Guidelines 4.1(A)(1) and 10.4(C)(2)(a)
(Rev.Ed.2003). Even then, the guidelines call for the mitigation specialist to
serve in an investigatory and advisory capacity. See, e.g., id. at Guideline 10.4(B)
(“counsel bears overall responsibility for the performance of the defense team”).
Thus, we reject the state’s argument that counsel could rely on Hrdy’s
representations that he was a mitigation expert without conducting further
investigation.
       {¶ 98} The state also argues that it was reasonable for defense counsel to
believe that Hrdy had completed his investigation because of the amount that
Hrdy billed for his work. Hrdy stated in his initial letter to counsel that he rarely




                                         31
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needed more than $2,500 to complete an investigation, and he sent a bill after trial
to counsel for a total of $1,501.30. It is unclear when trial counsel received
Hrdy’s bill. But the billing represented only a little more than 60 percent of
Hrdy’s expected expenditures. A review of the billing statement also shows that
Hrdy had one meeting with Herring’s mother and four meetings with Herring and
did not meet with any other family members or potential mitigation witnesses.
Thus, contrary to the state’s argument, Hrdy’s billing statement put counsel on
notice that Hrdy’s investigation had been incomplete and more work should have
been done.
       {¶ 99} In Johnson v. Bagley, 544 F.3d 592 (6th Cir.2008), the Sixth
Circuit addressed similar ineffectiveness claims in a capital case.      Counsel’s
mitigation strategy in that case had been to humanize the defendant through his
grandmother’s testimony and to present her as a compelling witness who would
suffer from a jury decision to impose a death sentence. A central theme of the
defense strategy was to present the grandmother as a pivotal figure in the
defendant’s life, who “did everything that one could reasonably expect to do to try
[to] help” him. Id. at 599-600.
       {¶ 100} The court stated that “[i]n the abstract,” counsel’s mitigation
strategy might have been a “legitimate strategic decision.” Id. at 600. But the
court determined that trial counsel “pursued this strategy after what can only be
described as an anemic and leaderless investigation” that suffered from significant
flaws. Id.
       {¶ 101}    First, the court stated that the defense team chose not to
interview the defendant’s mother because she had been a prostitute and a drug
addict and would have been a “bad mitigation witness.” Id. The court stated that
the mother’s bad background was precisely the reason why she should have been
interviewed. Id. Second, the court stated that the defense obtained a large
number of files from the Ohio Department of Human Services but apparently




                                        32
                               January Term, 2014




never read them. Instead, defense counsel simply submitted them to the jury
without knowing whether they hurt the defendant’s strategy or helped it. Id. The
court stated that if counsel had read the records they would have learned that
social workers were reluctant to place the defendant in his grandmother’s custody
because of her abusive history. Thus, a review of the records would have tipped
off counsel to a different mitigation theory and avoided the pitfall of submitting
records to the jury that directly contradicted counsel’s theory that the defendant’s
grandmother was a positive force for change in his life. Id. at 600-601.
       {¶ 102}     In a situation with similarities to the present case, Johnson’s
trial counsel acknowledged that they were not involved in the mitigation
investigation. Trial counsel had provided their mitigation specialists with an
initial set of names, but one attorney admitted that he had provided no significant
guidance, saying, “I don’t plan the investigation. We get the mitigation experts
out to do that.” 544 F.3d at 601. On the day before trial began, that attorney
admitted that he did not know what his investigator had done, and midway
through the trial, defense counsel did not “even know what records [they were]
going to have.” Id.
       {¶ 103}     The Sixth Circuit stated that these investigative blunders
occurred because no one who participated in Johnson’s penalty-phase defense
made any deliberate decisions about the scope of the investigation. Id. The Sixth
Circuit noted that the lack of structure and supervision over the investigation led
to significant delays and missed appointments and “ ‘suggest[s] that [the
defense’s] incomplete investigation was the result of inattention, not reasoned
strategic judgment.’ ” Id. at 602, quoting Wiggins, 539 U.S. at 534, 123 S.Ct.
2527, 156 L.Ed.2d 471. The court concluded that defense counsel’s presentation
could not be justified as a strategic decision since they “were not in a position to
make * * * reasonable strategic choice[s] * * * because the investigation
supporting their choice[s] was unreasonable.” Id. at 603, quoting Wiggins at 536.




                                        33
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       {¶ 104}     As in Johnson, Herring’s trial counsel had the responsibility to
ensure that a complete investigation was performed into Herring’s background
before the penalty phase. Johnson also demonstrates that trial counsel cannot
avoid their responsibility for the failure to complete an adequate investigation into
Herring’s background because of Hrdy’s failures. Moreover, as in Johnson, the
evidence shows that trial counsel’s failure to complete the investigation resulted
from “inattention, not reasoned strategic judgment.” Id. at 602. We conclude that
Hrdy’s shortcomings did not excuse counsel’s failure to ensure that an adequate
investigation was completed.
                         (d) Herring’s lack of cooperation
       {¶ 105} The state also argues that Herring’s refusal to discuss or divulge
any negative information about himself or his family precludes him from claiming
that counsel’s investigation was inadequate.
       {¶ 106} Zena testified that Herring had not been forthcoming with any
negative information about his family. But Zena stated that Herring did not place
any restrictions on the “presentment of the mitigation.” Zena explained, “When
we got to the mitigation phase, [Herring] was cooperative in the sense of knowing
* * * what we were going to do, but he was not forthcoming with any
information.” Herring’s lack of cooperation in preparing for mitigation is an
important factor in reviewing whether counsel was deficient.
       {¶ 107} To determine whether counsel’s performance was deficient, the
court must measure it against an objective standard based on accepted
professional norms. See Rompilla, 545 U.S. at 380, 125 S.Ct. 2456, 162 L.Ed.2d
360. As a starting point, neither Wiggins nor Strickland addresses a situation in
which a defendant fails to cooperate with counsel’s efforts to present mitigating
evidence to a sentencing court. In Rompilla, the defendant refused to assist
counsel in the development of a mitigation case, id. at 381, but there is no
indication the defendant ever informed the court or his counsel that he did not




                                         34
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want mitigating evidence presented. The Supreme Court held that counsel was
responsible for conducting a further investigation even though the defendant had
suggested to counsel that no mitigation was available. Id. at 381-389.
       {¶ 108} In some extreme cases, courts have held that counsel’s
investigation was reasonable given the defendant’s lack of cooperation.           In
Schriro v. Landrigan, 550 U.S. 465, 127 S.Ct. 1933, 167 L.Ed.2d 836 (2007), the
defendant actively obstructed counsel’s investigation and outright refused to
allow counsel to present mitigating evidence.         For example, the defendant
explicitly instructed his mother and ex-wife not to testify and they refused to do
so. Id. at 469-470. Counsel tried to make a proffer of the witnesses’ testimony,
but the defendant repeatedly interrupted his counsel’s presentation to the court to
reiterate that he did not want mitigating evidence presented. Id. at 470. The
Supreme Court held that the defendant’s refusal to cooperate in the penalty phase
rendered counsel’s limited investigation and presentation of mitigating evidence
reasonable under the circumstances. Id. at 475-477.
       {¶ 109} In Owens v. Guida, 549 F.3d 399 (6th Cir.2008), the court
considered whether counsel’s failure to investigate a capital defendant’s
background was deficient when the defendant would not cooperate. In Owens,
the defendant would not cooperate with mental-health examiners, would not allow
counsel to communicate with her family and, contrary to counsel’s advice, would
not take the stand herself. Id. at 406-407. The court held that any failure to
develop mitigating evidence was the result of the defendant’s actions and not
deficient performance by her counsel. Id. at 412. The court stated, “A defendant
cannot be permitted to manufacture a winning [ineffective-assistance-of-counsel]
claim by sabotaging her own defense, or else every defendant clever enough to
thwart her own attorneys would be able to overturn her sentence on appeal.” Id.
       {¶ 110} Herring’s refusal to cooperate appears to fall somewhere between
Rompilla and Landrigan.      Herring was not forthcoming with counsel during




                                        35
                             SUPREME COURT OF OHIO




mitigation, particularly with any negative information about his family.          But
Herring never told trial counsel that he did not want mitigation evidence
presented. Thus, Herring’s refusal to divulge information did not excuse counsel
from conducting a mitigation investigation. See State v. Neyland, 139 Ohio St.3d
353, 2014-Ohio-1914, 12 N.E.3d 1112, ¶ 242-249.
          3. Conclusion: Counsel’s mitigation preparation was deficient
       {¶ 111} Trial counsel’s strategy to present only “positive mitigation” was
deficient because neither defense counsel nor the mitigation specialist completed
a thorough mitigation investigation beforehand. Trial counsel’s responsibility to
ensure that an investigation was completed cannot be excused because of Hrdy’s
omissions, Hrdy’s failure to communicate with counsel, or Herring’s refusal to
provide trial counsel with negative information about his family.
     B. No constitutional right to mitigation specialist; imputation of Hrdy’s
                  deficiencies to counsel (Proposition of Law II)
       {¶ 112} The state’s second proposition recasts its claim that trial counsel
were not responsible for inadequacies in Hrdy’s investigation. The state argues
that Hrdy’s deficiencies in completing the investigation cannot be imputed to
counsel, who did not have sufficient knowledge of them, because capital
defendants do not have a constitutional right to the effective assistance of a
mitigation specialist.
       {¶ 113} It is true that Herring did not have a constitutional right to a
mitigation specialist or a right to an effective one. See Moore v. Mitchell, 708
F.3d 760, 777 (6th Cir.2013); State v. McGuire, 80 Ohio St.3d 390, 399, 686
N.E.2d 1112 (1997) (no requirement for counsel to hire mitigation specialist in
capital case). Even though “counsel did not have a specific obligation to employ
a mitigation specialist, they did have an obligation to fully investigate the possible
mitigation evidence available.” Jells, 538 F.3d at 495. The state’s argument that
trial counsel’s responsibilities were lessened because Herring did not have a




                                         36
                               January Term, 2014




constitutional right to an effective mitigation specialist is unpersuasive.      As
discussed regarding the state’s first proposition, trial counsel had the
responsibility to ensure that a complete investigation was performed before
making the decision to present only positive mitigating evidence. Moreover, trial
counsel cannot avoid their responsibility by relying on Hrdy’s failure to tell them
that his investigation was incomplete. That is particularly true in this case, in
which the facts show that the inadequate investigation resulted from trial
counsel’s inattention and failure to monitor Hrdy’s progress in conducting it.
                  C. Prejudice inquiry (Proposition of Law III)
       {¶ 114} The court of appeals concluded that trial counsel’s deficient
performance was prejudicial. The court stated that the undiscovered mitigating
evidence “ ‘ “might well have influenced the jury’s appraisal” ’ ” of Herring’s
culpability. 2011-Ohio-662, at ¶ 90, quoting Rompilla, 545 U.S. at 393, 125 S.Ct.
2456, 162 L.Ed.2d 360, quoting Williams, 529 U.S. at 398, 120 S.Ct. 1495, 146
L.Ed.2d 389. The court also stated that “the probability of a different sentence if
counsel had presented the evidence is ‘ “sufficient to undermine the confidence in
the outcome.” ’ ” Id., quoting Rompilla at 393, quoting Strickland, 466 U.S. at
694, 104 S.Ct. 2052, 80 L.Ed.2d 674.
       {¶ 115} The state argues that even if trial counsel’s mitigation
investigation was deficient, the court of appeals erred in concluding that Herring
was prejudiced as a result of the deficiency without reweighing the evidence. The
state claims that a reweighing of the evidence establishes that Herring was not
prejudiced.
                                 1. Legal standard
       {¶ 116} In assessing prejudice, “the question is whether ‘there is a
reasonable probability that, but for counsel’s unprofessional errors, the result of
the proceeding would have been different.            A reasonable probability is a
probability sufficient to undermine confidence in the outcome.’ ”          State v.




                                        37
                             SUPREME COURT OF OHIO




Williams, 99 Ohio St.3d 493, 2003-Ohio-4396, 794 N.E.2d 27, ¶ 163, quoting
Strickland at 694. To assess that probability, we consider “the totality of the
available mitigating evidence” and reweigh it “against the evidence in
aggravation.” Williams v. Taylor at 397-398.
       {¶ 117} Additional mitigating evidence that is “ ‘merely cumulative’ of
that already presented” does not undermine the results of sentencing. Broom v.
Mitchell, 441 F.3d 392, 410 (6th Cir.2006), quoting Clark, 425 F.3d at 286.
Instead, “the new evidence * * * must differ in a substantial way—in strength and
subject matter—from the evidence actually presented at sentencing.” Hill v.
Mitchell, 400 F.3d 308, 319 (6th Cir.2005); see Tibbetts v. Bradshaw, 633 F.3d
436, 444 (6th Cir.2011).
                  2. Evidence presented at the mitigation hearing
       {¶ 118} Herring was sentenced to death for the course-of-conduct
aggravating circumstance involving his intentional participation in three murders
and two attempted murders. The evidence at trial showed that Herring and his
accomplices killed these victims during a planned robbery of a Youngstown bar.
In this court’s independent sentence review on direct appeal, we described the
events that occurred at the Newport Inn and discussed evidence that singled out
Herring’s culpability as the ringleader:


                     The robbers clearly coordinated their actions in
           advance. They discussed the robbery among themselves
           before going to the Newport Inn; they divided into two
           groups to cover both doors; they started shooting almost
           immediately. The coordination displayed here belies the
           notion that the killings were merely impulsive acts by
           individual members of the gang.           That coordination
           supports the conclusion that the killings were integral to the




                                           38
                                   January Term, 2014




              robbery plan and that each of the robbers intended to kill
              the victims as part of that plan.
                        And that inference is especially strong with regard
              to Herring, because he was the evident ringleader. It was at
              his house that the robbers assembled, and he initiated the
              discussion of the robbery. Herring was the only robber
              prepared with a mask. He also obtained the guns (except
              Foose’s), and he decided who would carry which gun.


94 Ohio St.3d at 266, 762 N.E.2d 940.
        {¶ 119} We also explained why Herring should receive the death penalty
even though Antwan Jones, one of Herring’s codefendants, did not. Jones was
convicted of three counts of aggravated murder and two counts of attempted
aggravated murder but death specifications against him were dismissed. Id. at
267. We stated:


              [S]ince Herring was the leader, the state certainly had a
              stronger case against him than against Jones on the issue of
              intent. Moreover, the state had ballistics evidence pointing
              to Herring, not Jones, as the actual killer on Count One
              (even though the jury acquitted Herring of being the actual
              killer on that count). There was no such evidence against
              Jones, who was carrying a .357-caliber firearm rather than
              a 9 mm. The state thus had a rational basis to seek the
              death penalty for Herring and not for Jones.


Id. at 268.




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         {¶ 120} As for mitigation, trial counsel presented evidence that Herring’s
accomplices did not receive the death penalty. Herring’s mother and his older
sister also provided positive testimony about his loving relationship with his
family and asked the jury to spare his life. In addition, trial counsel argued that
the jury should consider Herring’s youth. Herring was 18 years and 8 months old
at the time of the murders. Id. at 267.
                             3. Undiscovered evidence
         {¶ 121} In contrast to the evidence produced during the mitigation
hearing, the evidence that Herring’s counsel could have produced if they had
conducted an adequate investigation presents a more comprehensive picture of
Herring’s troubled background. Compelling mitigation evidence that was never
presented to the jury indicated that (1) Herring’s father died violently in a drug
dispute when Herring was young, (2) his mother used crack cocaine for most of
Herring’s childhood, (3) his stepfather was addicted to drugs, (4) Herring began
abusing drugs and alcohol at an early age and used them almost daily, (5) Herring
dropped out of school before finishing the tenth grade, (6) his mother did not
know whether Herring had ever graduated from high school, (7) Herring was a
gang member for much of his life, and (8) Herring began selling drugs in his early
teens.
         {¶ 122} In addition, Dr. Brams could have presented information about
Herring’s dysfunctional childhood. The jury would have learned that Herring
“was raised in an environment in which * * * basically every parental figure,
caregiver, family member, and associate was involved in illegal activities,
significant drug and alcohol abuse, and to whom the consequences of violating
the law evoked little anxiety.” The jury could have also heard that Herring was
introduced to gangs and drug dealing through other family members and that
Herring’s own mother asked him to purchase drugs for her. Thus, in contrast to




                                          40
                               January Term, 2014




the testimony presented at trial, substantial evidence showed that Herring had not
been raised by a caring and nurturing family.
       {¶ 123} Other evidence that was not presented to the jury revealed
cognitive and learning-skills deficits. Herring had a full-scale IQ of 87. But other
test results showed that Herring had a low score on visual-motor functioning and
had the perceptual-learning skills of a ten year old. In addition, Dr. Brams
diagnosed Herring with chronic alcohol abuse, cannabis abuse/dependence,
polysubstance abuse/dependence, depressive disorder, personality disorder with
narcissistic and antisocial features, and learning disabilities.   Dr. Brams also
stated that Herring’s IQ and achievement profiles, his history (which is suggestive
of learning disabilities), and his chronic and early onset of substance abuse
showed that he should have had a neuropsychological evaluation to determine
whether he suffers from an organic brain impairment.               Thus, additional
information about Herring’s mental impairments could have been developed and
presented to the jury if counsel had performed an adequate investigation.
                                 4. State’s position
       {¶ 124} The state argues that Herring was not prejudiced by trial counsel’s
failure to ensure that a more complete mitigation investigation occurred. First, the
state argues that the mitigation testimony of many of the family members would
not have been effective because a majority of them stated that they did not believe
that Herring committed the offenses. But this does not mean that the underlying
information that these witnesses could have conveyed about Herring’s
background was not believable.
       {¶ 125} Second, the state argues that the mitigating evidence that trial
counsel failed to discover would not have made a difference in the outcome of the
sentencing proceedings if that evidence had been presented to the jury. The state
cites Nields v. Bradshaw, 482 F.3d 442, 454 (6th Cir.2007), and Keith v. Mitchell,
455 F.3d 662, 670 (6th Cir.2006), in arguing that the Sixth Circuit has found that




                                         41
                            SUPREME COURT OF OHIO




the failure to present similar background information about a capital defendant
was not prejudicial.
        {¶ 126} In Nields, trial defense counsel had failed to discover that “
‘Nields’s childhood home life was chaotic and neglectful,’ that ‘he was an expert
and dedicated musician whose life was once very focused,’ that ‘he had several
successful employment experiences and was a hard worker,’ * * * and that he
‘was a dependable kind-hearted friend and an extremely helpful, friendly person.’
”   Id. at 454, quoting Nields’s brief.      The court found that this additional
information was “largely cumulative” of testimony at trial. Id. Unlike this case,
in Nields the additional evidence did not include gang involvement, drug and
alcohol abuse, or possible mental problems. Also unlike this case, the court in
Nields found that the additional information was largely cumulative of evidence
presented at trial.
        {¶ 127} In Keith, postconviction affidavits showed that trial defense
counsel had failed to interview family members, that friends and family had
praised Keith’s abilities in high school football and his relationship with his
daughter and nieces, and that a forensic and neuropsychological consultant had
opined that Keith might suffer from a mild brain impairment.            Id. at 670.
Evidence was also presented that his mother was a drug addict, that he had been
raised by his grandparents, that his grandmother was a convicted murderer, and
that his father gambled and was known to run the streets. Id. In concluding that
Keith was not prejudiced, the Sixth Circuit explained: “The additional mitigating
evidence * * * does not demonstrate that Keith’s life had been so terrible that he
was materially less culpable. In addition, * * * much of the so-called additional
information was already given to the jury in the [presentence report], including
descriptions of Keith’s family history and childhood circumstances.” Id.
        {¶ 128} There are similarities between the additional evidence in Keith
and that in the present case. Both cases implicate a family history of neglect, drug




                                        42
                               January Term, 2014




abuse, and criminal misconduct, and both involve the possibility that the
defendant suffered from brain impairment. But unlike the present case, Keith’s
jury had been provided a presentence report that described his family history and
childhood circumstances.
       {¶ 129} Moreover, the Sixth Circuit has found that defense counsel’s
failure to conduct a full mitigation investigation was prejudicial in a number of
different circumstances that are similar to the present case. See, e.g., Foust, 655
F.3d at 539-546 (prejudice found when counsel had failed to obtain information
about family chaos, parental abuse and neglect, squalor, incest, and sexual abuse
in the family home and about good acts defendant performed in saving a baby
from being shot in a drive-by shooting and convincing his sister to stop strip
dancing and using drugs); Johnson, 544 F.3d at 606 (prejudice found when
counsel had failed to discover evidence that defendant’s mother was a neglectful
drug addict and had committed “atrocities” on him by giving him beer and
Percocet when he was a child to stop crying, putting a cigarette out in his eye, and
teaching him as an adolescent to prepare and sell crack cocaine); Jells, 538 F.3d at
500-501 (prejudice found when counsel had failed to discover evidence showing
that defendant had significant learning disabilities, which led to aggressive
behavioral responses, and that he experienced a sense of victimization due to his
mother’s abusive relationships).
       {¶ 130} Third, the state argues that the court of appeals ignored the fact
that Herring’s and his family’s alcohol and drug abuse are entitled to little weight
in mitigation. The additional mitigation that counsel failed to discover, however,
involved much more than Herring’s alcoholism and drug abuse.
       {¶ 131} Finally, the state argues that the trial judge’s opinion overruling
Herring’s postconviction claim should be afforded great deference because the
same judge presided over Herring’s trial and postconviction proceedings. See
Williams, 529 U.S. at 396-397, 120 S.Ct. 1495, 146 L.Ed.2d 389; Schriro, 550




                                        43
                             SUPREME COURT OF OHIO




U.S. at 476, 127 S.Ct. 1933, 167 L.Ed.2d 836. That judge never reached the
prejudice prong of Herring’s ineffectiveness claim, however, because he ruled
that trial counsel’s mitigation investigation was not deficient.
        5. Reweighing the aggravating circumstance and mitigating factors
        {¶ 132} In this case, counsel presented some evidence at the mitigation
hearing. The judge and jury heard almost nothing that would have humanized
Herring or allowed them to gauge his moral culpability. They learned about
Herring’s crimes, that his mother and sister loved him, that his accomplices did
not receive the death penalty, that he was young, and almost nothing else.
        {¶ 133} Had Herring’s counsel been effective, the judge and jury could
have learned of the “kind of troubled history” that the United States Supreme
Court has “declared relevant to assessing a defendant’s moral culpability.”
Wiggins, 539 U.S. at 535, 123 S.Ct. 2527, 156 L.Ed.2d 471. They could have
heard many specific details about (1) Herring’s dysfunctional childhood, (2) his
family history of alcohol and drug abuse, (3) his gang involvement, (4) his
mental-health problems, and (5) his possible brain impairment. See Penry v.
Lynaugh, 492 U.S. 302, 319, 109 S.Ct. 2934, 106 L.Ed.2d 256 (1989), abrogated
on other grounds, Atkins v. Virginia, 536 U.S. 304, 122 S.Ct. 2242, 153 L.Ed.2d
335 (2002), quoting California v. Brown, 479 U.S. 538, 545, 107 S.Ct. 837, 93
L.Ed.2d 934 (1987) (O’Connor, J., concurring) (“ ‘evidence about the defendant’s
background and character is relevant because of the belief, long held by this
society, that defendants who commit criminal acts that are attributable to a
disadvantaged background * * * may be less culpable’ ”).
        {¶ 134} On the other side of the ledger, we acknowledge that Herring’s
course of conduct in killing three people and attempting to kill two more was
horrific.   “Powerful aggravating circumstances, however, do not preclude a
finding of prejudice.” Foust, 655 F.3d at 546. Substantial mitigating factors
existed in this case. The undiscovered and omitted evidence detailed above




                                          44
                               January Term, 2014




provided a compelling narrative that could have shifted the balance between the
aggravating circumstance and the mitigating factors. Although we express no
view on whether the aggravating circumstance outweighs the mitigating factors,
we conclude that there is a reasonable probability that the penalty-phase outcome
would have been different but for the errors of defense counsel.
                                 VI. Conclusion
       {¶ 135} We hold that trial counsel were deficient by failing to conduct a
thorough and adequate investigation into Herring’s background before his
mitigation hearing. We also hold that the court of appeals properly determined
that counsel’s deficiency was prejudicial pursuant to Strickland. Accordingly, we
affirm the judgment of the court of appeals vacating Herring’s death sentence and
remanding this matter to the trial court for a new sentencing hearing, at which a
new jury shall be impaneled to consider whether to impose the death penalty or a
life sentence.
                                                                Judgment affirmed.
       O’CONNOR, C.J., and FRENCH and O’NEILL, JJ., concur.
       O’DONNELL, LANZINGER, and KENNEDY, JJ., dissent.
                               _________________


       O’DONNELL, J., dissenting.
       {¶ 136} Respectfully, I dissent.
       {¶ 137} This case concerns the trial strategy developed by Herring’s
defense counsel to present only positive mitigation evidence, which included
Herring’s mother and sister asking the jury to spare his life. In my view, Herring
has failed to rebut the presumption that counsel performed competently and has
not shown a reasonable probability that but for counsel’s failure to inquire further
into the existence of other mitigating evidence, the outcome of the proceeding
would have been different.




                                          45
                             SUPREME COURT OF OHIO




             Review of Ineffective Assistance of Counsel Claims
       {¶ 138} As the Supreme Court explained in Strickland v. Washington,
466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), “A convicted
defendant’s claim that counsel’s assistance was so defective as to require reversal
of a conviction or death sentence has two components.” First, the accused must
overcome “a strong presumption that counsel’s conduct falls within the wide
range of reasonable professional assistance,” id. at 689, and demonstrate that
counsel’s performance was deficient, i.e., that “counsel made errors so serious
that counsel was not functioning as the ‘counsel’ guaranteed the defendant by the
Sixth Amendment.” Id. at 687. Second, the accused bears the burden of proving
that the specified errors resulted in prejudice by showing “a reasonable
probability that, but for counsel’s unprofessional errors, the result of the
proceeding would have been different.” Id. at 694.
       {¶ 139} “[S]crutiny of counsel’s performance must be highly deferential,”
id. at 689, and the court has recognized that “[s]urmounting Strickland’s high bar
is never an easy task,” Padilla v. Kentucky, 559 U.S. 356, 371, 130 S.Ct. 1473,
176 L.Ed.2d 284 (2010). Importantly, this case concerns the trial court’s denial of
a petition for postconviction relief, which “should be upheld absent an abuse of
discretion.” State v. Gondor, 112 Ohio St.3d 377, 2006-Ohio-6679, 860 N.E.2d
77, ¶ 58. “ ‘The term ‘abuse of discretion’ * * * implies that the court’s attitude is
unreasonable, arbitrary or unconscionable.’ ” State v. White, 118 Ohio St.3d 12,
2008-Ohio-1623, 885 N.E.2d 905, ¶ 46, quoting State v. Adams, 62 Ohio St.2d
151, 157, 404 N.E.2d 144 (1980). Thus, our review here is “doubly deferential.”
See Knowles v. Mirzayance, 556 U.S. 111, 123, 129 S.Ct. 1411, 173 L.Ed.2d 251
(2009) (review of ineffective assistance claim in federal habeas action is “doubly
deferential”).




                                         46
                               January Term, 2014




                             Deficient Performance
       {¶ 140} As the Supreme Court explained in Wiggins v. Smith, 539 U.S.
510, 527, 123 S.Ct. 2527, 156 L.Ed.2d 471 (2003), “In assessing the
reasonableness of an attorney’s investigation, * * * a court must consider not only
the quantum of evidence already known to counsel, but also whether the known
evidence would lead a reasonable attorney to investigate further.” Thus, Herring
bore the burden to demonstrate that his defense attorneys were on notice of the
need to inquire further. He has not, however, met this burden.
       {¶ 141} Herring’s defense attorneys, Gary Van Brocklin and Thomas
Zena, hired Thomas Hrdy, a mitigation specialist, to conduct an investigation
seeking to uncover potential mitigating evidence. However, Hrdy produced little
information, and he subsequently admitted that he “did a substandard job of
mitigation investigation.”   He also asserted that he lacked enough time to
complete the investigation, but both defense attorneys dispute that claim. There is
no proof that defense counsel had any indication at the time of trial that Hrdy
performed an inadequate investigation into possible mitigating evidence. Hrdy’s
affidavit makes no such claim, and defense counsel both testified that they had no
notice that the investigation was inadequate.     Van Brocklin testified that he
“believed at the time that [Hrdy] had done all of the work necessary to look into
Mr. Herring’s background” and that Hrdy never alerted defense counsel that “he
in any way fell short of the mark.” Notably, Hrdy told counsel, “This has been a
most difficult case to find mitigation on as you well know,” which would
reasonably have caused defense counsel to believe that an adequate investigation
had been completed.
       {¶ 142} Nor did Hrdy’s billing statement “put counsel on notice that
Hrdy’s investigation had been incomplete,” majority opinion at ¶ 98, because, as
the majority acknowledges, it is unclear when trial counsel received Hrdy’s bill.
Moreover, the details in the billing statement may have simply confirmed defense




                                        47
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counsel’s belief that Hrdy had located nothing in Herring’s past that the jury panel
would have found mitigating.
        {¶ 143} And even if trial counsel should have known that Hrdy’s
investigation was inadequate, there is no proof that a more in-depth investigation
would have disclosed anything counsel did not already know. Van Brocklin
testified that he and Zena “knew a lot of negative information” about Herring
“through our own investigation and through criminal records and those kinds of
things that were supplied to us during the lengthy discovery process.” Thus,
contrary to the majority’s conclusion, there is no indication that counsel did not in
fact “review Herring’s [Department of Youth Services] records and other records
that would have provided information about his dysfunctional background,”
majority opinion at ¶ 89, nor does the record show that defense counsel at the time
of trial were not aware of Herring’s “parental neglect, gang involvement, or life as
a drug dealer,” id. at ¶ 71.
        {¶ 144} Rather, the record contains “a handful of post-hoc nondenials”
by his lawyers, Cullen v. Pinholster, ___ U.S. ___, 131 S.Ct. 1388, 1406, 179
L.Ed.2d 557 (2011), who could not specifically recall what they had known about
Herring’s background. In assuming that because counsel could not remember the
scope of the investigation, one must not have been conducted, the majority
ignores the presumption that counsel had performed professionally and fails to
recognize that, as Zena testified, defense counsel in this case strove to put “the
best foot forward to save [Herring].”
        {¶ 145} Similarly, Herring asserts that trial counsel were deficient because
they failed to evaluate the psychological, developmental, and intellectual factors
in Herring’s background; he relies on a letter from Dr. Douglas Darnell indicating
that he had administered only the MMPI-2 to Herring and suggesting that Herring
may have “a delusional disorder.” But Dr. Darnell’s letter reports that counsel
had asked only for the MMPI-2 to be administered, and nothing in this letter




                                         48
                                 January Term, 2014




indicates that this was the only assessment that Dr. Darnell or any other expert
conducted. And trial counsel lacked any independent memory of what steps they
took to evaluate Herring’s mental state. Their case files—which would establish
whether or not defense counsel had conducted a reasonable investigation—were
apparently lost by his appellate attorneys in the public defender’s office.
       {¶ 146} Thus, nothing in this record indicates that defense counsel
violated the “duty to make reasonable investigations or to make a reasonable
decision that makes particular investigations unnecessary.” Strickland, 466 U.S.
at 691, 104 S.Ct. 2052, 2066, 80 L.Ed.2d 674. Herring has therefore not rebutted
the strong presumption in favor of the adequacy of trial counsel’s representation,
nor has he shown that any of the claimed errors are anything more than “a
disagreement over trial strategy.” State v. Brown, 115 Ohio St.3d 55, 2007-Ohio-
4837, 873 N.E.2d 858, ¶ 53.
       {¶ 147} As we have consistently explained, “Debatable trial tactics
generally do not constitute a deprivation of effective counsel.” State v. Lang, 129
Ohio St.3d 512, 2011-Ohio-4215, 954 N.E.2d 596, ¶ 192, citing State v. Phillips,
74 Ohio St.3d 72, 85, 656 N.E.2d 643 (1995); State v. Clayton, 62 Ohio St.2d 45,
49, 402 N.E.2d 1189 (1980) (“Counsel chose a strategy that proved ineffective,
but the fact that there was another and better strategy available does not amount to
a breach of an essential duty to his client”).
       {¶ 148} Counsel’s tactics in this case were not manifestly outside the
bounds of reasonable trial strategy. Defense counsel based the decision to present
positive information on the composition of the particular jury panel, which they
viewed as likely to impose the death sentence on Herring.             Van Brocklin
explained that negative information that “Herring had been involved in a life of
crime would simply [have been] more ammunition for them to find a death
verdict.” And Zena believed that putting on negative mitigation evidence would
have served only to “bury him further.” Thus, as the Supreme Court noted in




                                          49
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Cullen v. Pinholster, ___ U.S. ___, 131 S.Ct. at 1407, 179 L.Ed.2d 557, “it
certainly can be reasonable for attorneys to conclude that creating sympathy for
the defendant’s family is a better idea because the defendant himself is simply
unsympathetic.” (Emphasis sic.)
        {¶ 149} Trial strategy is the province of defense counsel, not mitigation
specialists. It is the accused’s attorneys who are charged with the responsibility to
develop the trial strategy in an effort to present the best case on behalf of the
defendant; they bear the ultimate responsibility for defending the accused at trial.
And this is true even if a mitigation specialist asserts, after the fact, that he failed
to do his job in conducting the investigation to discover mitigating evidence.
There is no constitutional right to the effective assistance of a mitigation
specialist, only a right to the effective assistance of counsel.        See Moore v.
Mitchell, 708 F.3d 760, 777 (6th Cir.2013); State v. McGuire, 80 Ohio St.3d 390,
399, 686 N.E.2d 1112 (1997). And because Herring has failed to prove that his
trial attorneys performed deficiently, the trial court did not abuse its discretion in
finding that counsel had provided a competent defense.
                                      Prejudice
        {¶ 150} Even assuming that counsel’s conduct fell outside the range of
reasonable professional assistance, Herring still carries the burden to establish
prejudice.   “In assessing prejudice, we reweigh the evidence in aggravation
against the totality of available mitigating evidence,” Wiggins, 539 U.S. at 534,
123 S.Ct. 2527, 156 L.Ed.2d 471, and “it is necessary to consider all the relevant
evidence that the jury would have had before it if [trial counsel] had pursued the
different path—not just the mitigation evidence [trial counsel] could have
presented, but also [the other evidence] that almost certainly would have come in
with it.” (Emphasis sic.) Wong v. Belmontes, 558 U.S. 15, 20, 130 S.Ct. 383, 175
L.Ed.2d 328 (2009). Thus, Herring “must show a reasonable probability that the
jury would have rejected a capital sentence after it weighed the entire body of




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mitigating evidence (including the additional testimony [trial counsel] could have
presented) against the entire body of aggravating evidence.” Id.
       {¶ 151} Here, in my view, the appellate court committed reversible error
by failing to reweigh all the relevant evidence before it concluded that Herring
had been prejudiced by trial counsel’s errors.        The court noted that the
undiscovered mitigating evidence “ ‘ “might well have influenced the jury’s
appraisal” ’ ” of Herring’s culpability and that “the probability of a different
sentence if counsel had presented the evidence is ‘ “sufficient to undermine the
confidence in the outcome.” ’ ” 7th Dist. Mahoning No. 08-MA-213, 2011-Ohio-
662, ¶ 90, quoting Rompilla v. Beard, 545 U.S. 374, 393, 125 S.Ct. 2456, 162
L.Ed.2d 360 (2005), quoting Williams v. Taylor, 529 U.S. 362, 398, 120 S.Ct.
1495, 146 L.Ed.2d 389 (2000), and Strickland, 466 U.S. at 694, 104 S.Ct. 2052,
80 L.Ed.2d 674. Yet the court made no attempt to balance the mitigating factors
against the aggravating circumstances as required by Wiggins and Belmontes
before reaching that conclusion.
       {¶ 152} Instead, the appellate court considered only the mitigating
evidence that it determined counsel should have discovered and presented during
mitigation, including details about Herring’s dysfunctional childhood and family
life, alcohol and drug abuse, gang involvement, mental-health problems, and
possible brain impairment, taking the extraordinary step of setting aside Herring’s
death sentence and ordering a new mitigation hearing because this evidence was
not presented during trial—without first determining whether the submission of
this evidence would have made any difference when weighed against other
evidence in the case.
       {¶ 153} In my view, weighing the aggravating circumstance for each of
the three murder counts against the mitigating evidence that Herring asserts
counsel should have discovered demonstrates that any error did not affect the
outcome of the proceeding. The jury found Herring guilty of three death-penalty




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specifications for a course of conduct involving the purposeful killing of or
attempt to kill two or more persons. State v. Herring, 94 Ohio St.3d 246, 252,
762 N.E.2d 940 (2002). As we explained in the independent sentence review we
conducted on direct appeal, sufficient evidence proved Herring’s intentional
participation in three murders and two attempted murders during a planned
robbery of a Youngstown bar. The manner in which the robbery was committed
showed that each of the robbers, including Herring, intended to kill all of the
victims, and “[t]he coordination displayed here belies the notion that the killings
were merely impulsive acts by individual members of the gang.” Id. at 266. We
also noted Herring’s greater culpability as the ringleader of the group: “It was at
[Herring’s] house that the robbers assembled, and he initiated the discussion of
the robbery. Herring was the only robber prepared with a mask. He also obtained
the guns (except Foose’s), and he decided who would carry which gun.” Id. And
not only did the evidence show that Herring was the leader of the group, but also
the state presented ballistic evidence showing that Herring murdered Jimmie Lee
Jones in addition to attempting to murder Deborah Aziz and Ronald Marinelli
during the course of a robbery that also resulted in the killings of Herman Naze
Sr. and Dennis Kotheimer. Id. at 247, 268.
       {¶ 154} As for mitigation, trial counsel made a conscious, informed
decision to present “positive information” to the jury and “hammered home in
argument * * * that Mr. Herring had not been convicted as a principal offender in
this matter.” Counsel argued persuasively on Herring’s behalf, emphasizing that
his accomplices did not receive the death penalty. Herring’s mother and his older
sister provided testimony about his loving relationship with his family and urged
the jury to spare his life. And trial counsel asked the jury to consider Herring’s
youth, because he was only 18 years old at time of the murders. Id. at 267. This
is a reasonable approach given the disadvantages of opening Herring’s
background for the jury’s consideration.




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       {¶ 155} The additional evidence relating to Herring’s dysfunctional
family background, his drug abuse, and his gang involvement is by no means
“clearly mitigating.” In Cullen v. Pinholster, ___ U.S. ___, 131 S.Ct. at 1410,
179 L.Ed.2d 557, the Supreme Court reviewed an ineffective assistance of
counsel claim asserting that Pinholster had been prejudiced by his trial counsel’s
failure to adequately investigate and present mitigating evidence “relating to
Pinholster’s family—their more serious substance abuse, mental illness, and
criminal problems”—as well as new evidence of Pinholster’s drug dependency,
possible brain damage, and parental neglect; like Herring, “Pinholster was mostly
unsupervised and ‘didn’t get much love.’ ” Id. But the court concluded that this
evidence was “by no means clearly mitigating, as the jury might have concluded
that Pinholster was simply beyond rehabilitation.” Id. And the court noted that
negative mitigating evidence can be a “ ‘two-edged sword’ ” that might convince
a jury of the accused’s future dangerousness. Id., quoting Atkins v. Virginia, 536
U.S. 304, 321, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002).
       {¶ 156} The additional evidence that would have been presented on
behalf of Herring involved his history of violence and gang involvement, drug
abuse and drug trafficking, and other criminal behavior that he glorified as “the
family business.” In my view, this evidence is not mitigating and might have
caused the jury to conclude that Herring was beyond rehabilitation. Had counsel
attempted to explain Herring’s behavior and humanize him with this evidence, the
jury would likely have also learned of his extensive criminal past, including his
commitment to DYS for shooting another person while in eighth grade, various
aggravated robberies, and a life of gang involvement and drug trafficking. See
State v. Herring, 7th Dist. Mahoning No. 03-MA-12, 2004-Ohio-5357, ¶ 103.
       {¶ 157} Nor has Herring established any prejudice from counsel’s failure
to have him evaluated for a delusional disorder, an organic brain impairment, or
any other mental disorder. There is no evidence that Herring suffers from these




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conditions. Dr. Jolie Brams offered evidence in support of Herring’s petition for
postconviction relief, but had she testified at trial, she could have informed the
jury only that Herring had a learning disability, substance abuse problems, and
“reasonable anxiety and depression,” none of which would have proven that
Herring had an impaired ability to appreciate the criminality of his conduct.
       {¶ 158} In the last analysis, I see no reasonable probability that the jury
would have returned a different verdict had this additional evidence been
presented to it. Defense counsel recognized that this was “an awful case as cases
go. * * * This was mayhem in a bar where people wound up dead, people wound
up shot, bullets all over the floor,” and the victims were innocent bystanders who
were not “involved in any transgressions with any of the individuals who came
in.”
       {¶ 159} Accordingly, because Herring has not shown that defense
counsel provided ineffective assistance, the trial court did not abuse its discretion
in denying the petition for postconviction relief. I would therefore reverse the
judgment of the court of appeals and reinstate the sentence as imposed on Herring
by the trial court in accordance with the recommendation of the jurors who heard
the evidence in the case.


       LANZINGER and KENNEDY, JJ., concur in the foregoing opinion.
                              ___________________
       Paul J. Gains, Mahoning County Prosecuting Attorney, and Ralph M.
Rivera, Assistant Prosecuting Attorney, for appellant.
       Timothy Young, Ohio Public Defender, and Kimberly S. Rigby and
Elizabeth Arrick, Assistant Public Defenders; and Andrea D. Lyon, for appellee.
                              ___________________




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