Second OT2009 Opinion–PC in Capital Case

No Supreme Court opinions in argued cases yet, but we got a second per curiam in a non-argued case. The Court summarily reversed the Sixth Circuit (Merritt, Martin, Moore) in the case of David Bobby (I guess that’s Ricky’s brother), Warden v. Robert J. Van Hook, 09-144, a capital case presenting the question of the standard for ineffective assistance of counsel on habeas.

The Court faulted the Sixth Circuit for considering the American Bar Association’s 2003 guidelines for assistance in capital cases, which were released 18 years after Van Hook’s trial, and for considering those guidelines as strict standards with which all capital counsel “must fully comply” rather than simply evidence of what effective counsel would do. The Court then reviewed the record in some detail and concluded that Van Hook’s counsel was constitutionally effective. The Court had relisted the case four times.

Of particular note, Justice Alito wrote a one-paragraph concurring opinion saying that “I see no reason why the ABA Guidelines should be given a privileged position in making that [effectiveness] determination,” since the ABA, however “venerable,” “is, after all, a private group with limited membership” whose views “do not necessarily reflect the views of the American bar as a whole.” Those of you who are on “sour grapes” patrol, note that the ABA gave Alito a unanimous “well-qualified” rating when he was nominated to the Supreme Court, and gave him a similar “well qualified” rating when he was put on the Third Circuit, although I don’t know offhand if that was unanimous. And, in response to a comment in the comment thread, it is noteworthy that there were no dissents–not even to the decision to proceed summarily.

Click here for the opinion:

I suspect the opinion was written by the Chief. What do you think?