[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 
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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 
January Term, 2014 

3

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. 
January Term, 2014 

5

{¶ 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.” 
SUPREME COURT OF OHIO

6 

{¶ 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 
January Term, 2014 

7

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 fullscale IQ of 87. Results on the Beery Buktenica Developmental Test of VisualMotor 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 
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8 

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.” 
January Term, 2014 

9

{¶ 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.” 

 
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10 

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 
January Term, 2014 

11

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 
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12 

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 
January Term, 2014 

13

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 
SUPREME COURT OF OHIO

14 

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. 
January Term, 2014 

15

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.” 
SUPREME COURT OF OHIO

16 

{¶ 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 
January Term, 2014 

17

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 
SUPREME COURT OF OHIO

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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 
January Term, 2014 

19

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 
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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 
January Term, 2014 

21

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 deficientperformance 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 
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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 
January Term, 2014 

23

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 
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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 
January Term, 2014 

25

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 
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26 

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 
January Term, 2014 

27

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. 
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28 

{¶ 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, 
January Term, 2014 

29

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 positivemitigation 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 
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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 
January Term, 2014 

31

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 
SUPREME COURT OF OHIO

32 

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 
January Term, 2014 

33

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. 
SUPREME COURT OF OHIO

34 

{¶ 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 
January Term, 2014 

35

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 
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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 
January Term, 2014 

37

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. 
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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 
January Term, 2014 

39

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 
January Term, 2014 

41

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 
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42 

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 
January Term, 2014 

43

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 
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44 

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 
January Term, 2014 

45

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. 
SUPREME COURT OF OHIO

46 

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”). 

 
January Term, 2014 

47

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 
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48 

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 
January Term, 2014 

49

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-Ohio4837, 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 
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50 

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 
January Term, 2014 

51

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-Ohio662, ¶ 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. 
January Term, 2014 

53

{¶ 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. 

___________________