Death-row inmate Willie Herring will receive a new sentencing hearing.

Death-row inmate Willie Herring will receive a new sentencing hearing.

The Ohio Supreme Court today vacated the death sentence of a Youngstown man convicted in the 1996 murders of three people and attempted murders of two others during the robbery of a bar.

Lawyers for Willie Herring were deficient because they did not complete a thorough and adequate investigation into Herring’s background to determine which mitigating factors to present to the jury during the penalty phase of his trial, Justice Paul E. Pfeifer wrote in the court’s 4-3 decision. The Supreme Court’s decision affirms the judgment of the appeals court.

The case now returns to the Mahoning County Court of Common Pleas for a new sentencing hearing with a new jury, which will decide whether to impose the death penalty or a life sentence.

In April 1996, Herring and five others met at Herring’s house to plan the robbery of the Youngstown bar Newport Inn. Herring distributed guns to three of the men. He wore a Halloween mask, and the others covered their faces with bandanas or a T-shirt. In the early morning hours of April 30, they stormed the bar, demanding money and shooting four patrons and the owner, who was bartending that night. Three customers died from gunshot wounds.

A jury convicted Herring of three counts of complicity to commit aggravated murder, two counts of attempted aggravated murder, and two counts of aggravated robbery, along with death-penalty and firearms specifications. After a hearing to consider mitigating factors and whether a life or a death sentence was appropriate, the jury recommended the death penalty for the three murders, and the trial court agreed.

The Ohio Supreme Court affirmed his convictions and death sentence in February 2002.

Herring also petitioned the trial court for postconviction relief, arguing that his attorneys did not conduct an adequate investigation into possible mitigating circumstances before the penalty phase hearing. In January 2003, the court granted summary judgment to the state and denied Herring’s claim that his counsel were ineffective.

Herring appealed, and the Seventh District Court of Appeals reviewed additional evidence submitted as part of Herring’s petition and ruled that the trial court should not have rejected his claim. The appeals court ordered the trial court to hold a hearing to consider the evidence of mitigation and the extent of the attorneys’ investigation into Herring’s background before they decided a trial strategy.

Following the hearing, the trial court again rejected Herring’s petition in September 2008. On appeal, the Seventh District once more disagreed with the trial court’s ruling and ordered a new sentencing hearing. The appellate court stated that the additional mitigating evidence might have changed the outcome of the trial. The state filed an appeal with the Ohio Supreme Court.

For a claim of ineffective assistance of counsel to succeed, the court must find that Herring’s lawyers were deficient in their representation and that there is a reasonable probability the trial’s outcome might otherwise have been different (U.S. Supreme Court, Strickland v. Washington, 1984).

In today’s opinion, Justice Pfeifer concluded that Herring’s lawyers performed deficiently by not ensuring that a comprehensive investigation was done before the mitigation hearing began.

“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,” Justice Pfeifer wrote. “Defense counsel also failed to ensure that Herring was adequately evaluated and tested by a psychologist.”

While Herring’s counsel had hired a mitigation specialist, who testified post-trial that he did not have enough time to do his research and he thought his work in the case was “substandard,” the lawyers were ultimately responsible for the investigation, Justice Pfeifer explained. They fell short of standards set by the American Bar Association for death-penalty cases, and their inattention is not excused by any shortcomings or failures of the mitigation specialist, he added.

The state had contended that Herring’s lawyers chose to present only positive mitigating details as part of their trial strategy. While that approach can be appropriate in some cases, the court determined that such a strategy was inappropriate here because it was devised before a full investigation had been conducted into Herring’s background.

Justice Pfeifer also reasoned that Herring was prejudiced by the inadequate work of his attorneys. He noted that the jury would have heard a fuller account of Herring’s troubled background had his counsel completed an adequate investigation. Some evidence the jury never heard: the business of Herring’s family was drug dealing; his father was killed in a drug dispute when Herring was very young; his mother was addicted to crack throughout most of his childhood, and she asked him to buy her drugs; the family introduced him to gangs, and he was a member for much of his life; he started using alcohol and marijuana frequently at 13 or 14 years old, and he began selling drugs as a young teen; and he dropped out of school in tenth grade.

“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,’” Justice Pfeifer wrote, quoting Wiggins v. Smith (2003).

“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,” he explained. “Substantial mitigating factors existed in this case. The undiscovered and omitted evidence … 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.”

Justice Pfeifer’s opinion was joined by Chief Justice Maureen O’Connor and Justices Judith L. French and William M. O’Neill.

Justice Terrence O’Donnell dissented in an opinion joined by Justices Judith Ann Lanzinger and Sharon L. Kennedy.

Justice O’Donnell asserted that it is the obligation of defense counsel to develop trial strategy, and here, they chose to present Herring in a positive light to jurors.

He concluded that Herring did not demonstrate that his attorneys knew the mitigation specialist’s investigation was inadequate or that a more in-depth investigation would have provided information unknown to them.

“[T]he majority ignores the presumption that counsel had performed professionally and fails to recognize that, as [one of Herring’s attorneys] testified, defense counsel in this case strove to put ‘the best foot forward to save [Herring],’” Justice O’Donnell wrote.

In addition, “[c]ounsel’s tactics in this case were not manifestly outside the bounds of reasonable trial strategy,” he continued. “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.”

Justice O’Donnell also stated that the appellate court wrongly concluded that Herring was prejudiced by his attorneys’ errors, and therefore Herring did not demonstrate ineffective assistance of counsel according to the standard established by Strickland.

“[W]eighing 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,” Justice O’Donnell wrote.

Justice O’Donnell voted to reverse the appeals court’s judgment and reinstate the trial court’s sentence.

2011-0451. State v. Herring, Slip Opinion No. 2014-Ohio-5228.

View oral argument video of this case.

Please note: Opinion summaries are prepared by the Office of Public Information for the general public and news media. Opinion summaries are not prepared for every opinion, but only for noteworthy cases. Opinion summaries are not to be considered as official headnotes or syllabi of court opinions. The full text of this and other court opinions are available online.

PDF files may be viewed, printed, and searched using the free Acrobat^® Reader
Acrobat Reader is a trademark of Adobe Systems Incorporated.