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The Daily Digest, 2/21/11

Criminal defendants face a high burden when trying to prove they received ineffective assistance of counsel at trial. A substantial portion of cognitive neuroscience or behavioral genetics based claims are raised by capital defendants who claim to have received ineffective assistance of counsel because their mental health status was not investigated. Few succeed on their IAC claim because of the high doctrinal burden of proving both that the evidence should have been discovered by reasonable investigation, and that the defendant suffered prejudiced by failing to have that evidence admitted. Which isn’t to say these claims never succeed, as seen in the second case today.

If the claim is inadequate rather than complete failure to investigate mental health issues, the IAC claim usually fails. The first case today is in this category. Trial counsel introduced “incompetent” expert testimony at trial, contradicted by appellate experts who opined that the defendant suffered discoverable brain damage at the time he committed the crime.

The second case has an interesting and successful IAC claim concerning the defendant’s “mental age.” A defendant’s “mental age” may not track to his “chronological age.” The Petitioner (Defendant) prevailed on his claim of ineffective assistance of appellate counsel for failing to raise as error the trial court’s failure to submit to the jury the statutory mitigating circumstance relating to petitioner’s mental age.

Brain Dysfunction, Ineffective Assistance of Counsel (IAC), and Capital Mitigation
Harvey v. Warden, Union Correct. Inst., 629 F.3d 1228 (11th Cir. 2011)
D was convicted of two counts of first-degree murder and sentenced to death. D appeals the denial of his petition for writ of habeas corpus based on ineffective assistance of counsel at the guilt and penalty phase of his trial. Among other claims of constitutional deficiency, he claims that trial counsel failed to perform adequate investigation for mitigating evidence about his brain damage. Trial counsel called a psychologist but not a psychiatrist who testified that he believed the Defendant to have a personality disorder without organic-brain damage. At a post-conviction evidentiary hearing expert psychiatric witnesses disagreed with the trial expert and found that there was evidence of organic brain disorder, gleaned from a mixture of test results and evidence of head trauma from Defendant’s car accident and subsequent head injuries. The trial expert likewise testified that found no evidence of brain injury only because he lacked sufficient experience to link Defendant’s test results with signs of organic brain damage. It was this lack of competence that led him to suggest to trial counsel that Defendant see a psychiatrist, who not only could provide a second opinion, but also would be more thorough regarding likelihood of organic brain damage. Despite trial counsel’s failure to do so, the state court found there was no reason for trial counsel to think that the expert was not competent to judge Defendant’s brain damage. Given the standard of review on appeal, the 11th Circuit found no sufficient basis to disturb the state court’s determination that trial counsel acted reasonably in trusting his expert’s opinion that Defendant did not have brain damage. The district court’s denial of defendant’s petition for writ of habeas corpus was affirmed.

Brain Dysfunction, IAC (Successful!), and Capital Mitigation
Richardson v. Branker, 2011 WL 52357 (E.D. N.C. 2011)
Another petition for writ of habeas corpus for a defendant convicted of murder and sentenced to death, but this time successful. Defense counsel did not present any evidence or witnesses during the guilt phase of the trial. During sentencing, two mental health experts provided substantial evidence demonstrating Petitioner’s young mental and intellectual functioning, comparable to an eleven and a half year old child despite his chronological age of 31 at the time of the crime. One expert opined that lead poisoning such as petitioner suffered causes brain damage and affects the ability to develop intellectually. Petitioner claims he received ineffective assistance of appellate counsel because his appellate attorney failed to argue on direct appeal that he was prejudiced when the trial court failed to submit to the jury the statutory mitigating factor of “the age of the defendant at the time of the crime.” Under North Carolina law, age is a “flexible and relevant concept” not limited by chronological age. Had appellate counsel raised the issue that there was a reasonable probability that Petitioner would have prevailed. After considering the issue de novo, the court concludes petitioner has shown he received ineffective assistance of counsel on appeal in violation of his Sixth Amendment rights and is entitled to relief on this claim.

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