Sixth Circuit Reaffirms that an Attorney Cannot Exercise "Strategy" if (s)he Never Did Basic Investigation

In VanHook v. Anderson the Sixth Circuit recently granted a habeas corpus in a capital case where the evidence was that counsel did minimal investigation regarding the Defendant’s mental health. Since the Court’s 1984 ruling in Strickland v Washington, the United States Supreme Court has applied a two part test for determining whether counsel was ineffective: (a) whether there was a breach of counsel’s duty to the defendant; and, (b) “but for” that error, the defendant stood a reasonable chance for acquittal. While the analysis has not technically changed, many commentators have pointed out that later high court decisions have placed greater emphasis on Strickland’s language about the need for basic investigation. See, e.g. Wiggins v. Smith, 539 U.S. 510 (2003) (incorporating the American Bar Association Guidelines For the Appointment and Performance of Counsel in Death Penalty Cases as the professional standard of performance), and Rompilla v. Beard, 545 U.S. 374, 387 (2005) (same). Judge Merritt’s opinion in VanHook does a wonderful job at discussing this point and is a must read for any appellate practitioner. Hopefully, the decision survives en banc review. Mr. VanHook has previously won panel decisions on other grounds only to have defeat snatched from the jaws of victory by the en banc court.