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The Daily Digest, 2/3/11

With no further ado, the daily digest for the day:

Ineffective Assistance of Counsel for Failing to Introduce PET/MRI?
Flake v. State, 2011 WL 300213 (Tenn.Crim.App. 2011)
In an interesting case where the court set aside the original conviction to find the Petitioner NGRI, which was then reversed on appeal, Petitioner, who was convicted of two counts of first degree murder, sought post-conviction relief. Petitioner alleged that he received ineffective assistance of counsel at trial and on appeal. Among other claims, he argued that counsel failed to obtain an MRI and/or PET scan to show that Petitioner had a “broken” brain. The post-conviction court determined that Petitioner failed to present evidence regarding an MRI or PET scan at the post-conviction hearing and no mention was made of this issue at the post-conviction hearing and that Petitioner had therefore failed to carry his burden. Affirmed on appeal.

Duty to Supervise?
Smith v. Freund, 2011 WL 311002 (Cal.App. 2011)
Does Asperger’s create a foreseeable risk of violence? In this tragic case, a 19-year-old who suffered from Asperger’s Syndrome and lived as a dependent with his parents (defendants in this case), shot and killed two people before going home and committing suicide. The victims were members of the Plaintiff’s immediate family. Plaintiffs sued defendants for wrongful death, alleging defendants negligently supervised their son. Defendants moved for summary judgment, contending “that as a matter of law they had no duty to control/supervise their adult son and could not warn [plaintiffs] of a potential threat they had no knowledge of.” The court concluded that the defendants owed no duty of care to third parties to control their son and prevent him from harming other people. “The only inference the evidence reasonably supports is that defendants could not foresee [the] violent acts because they knew of no propensity or intention . . . to harm third parties.” The expert testified that Asperger’s Syndrome is a “social deficit” and “nonverbal learning” disorder and there is no substantial correlation between Asperger’s Syndrome and physical hostility toward others.


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