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The Daily Digest – 2/24/11

As I discussed earlier this week, criminal defendants often unsuccessfully seek post-conviction relief for ineffective assistance of counsel at trial for failing to introduce mitigating evidence of brain dysfunction.

In my earlier post I noted the difference between a claim about cumulative evidence of brain dysfunction and failure to investigate brain damage. The former claim most often fails because it’s difficult to show that trial counsel was inadequate for not introducing enough mental health evidence as mitigation. By contrast, inadequate or non-existent investigation of potential brain damage can substantiate a claim of ineffective assistance of trial counsel. In these cases, one cannot credibly claim that it was reasonable trial strategy to forego the introduction of brain damage during trial. After all, how can it be a trial strategy if trial counsel was unaware of it to weigh its potential value? The first two cases fall in the cumulative evidence and failed IAC claims. The third case falls in the failure to investigate and successful IAC claims category.

Brain Dysfunction, IAC, Cumulative Evidence
Baer v. State, 2011 WL 238218 (Ind.,2011)
Defendant challenges his denial for post-conviction relief and claims he received ineffective assistance of counsel during his trial, in which the jury convicted him of two counts of murder and sentenced him to death. The jury rejected his request for a verdict of guilty but mentally ill. On appeal defendant claims that his “trial counsel failed to obtain timely and comprehensive evaluations in a case where mental health was the pivotal issue.” He claims to suffer “cognitive impairments, substance-induced psychotic disorder, and schizotypal, paranoid, and borderline personality disorders … which substantially impaired his ability to conform his conduct to the law at the time of the crime and are extreme mental disturbances[,]” and that the jury was unaware that he had brain damage and the “biopsychosocial causes of his many personality disorders.” Defendant also claims that there is a “reasonable likelihood that, had the jury heard the evidence, it would have found [the defendant] GBMI or, at a minimum, voted against death.” Trial counsel, by contrast, had introduced experts who testified about the defendant’s family background, poor school performance, struggles with ADHD and several head injuries he had suffered during his youth. The post-conviction experts added additional testimony about additional neuropsychological evaluations. The Indiana Supreme Court opined “trial counsel enlisted experts who were not badly chosen or lacking in qualification.” Consequently, the PCR court was warranted in concluding that the evidence by additional experts was substantially cumulative of the testimony and opinion presented at trial, and that trial counsel did not perform deficiently.

Brain Dysfunction, IAC, Later Conflicting Mental Health Evidence
Fairbank v. Ayers, 2011 WL 504799 (9th Cir. 2011)
Defendant-appellant pled guilty to first-degree murder and the special circumstances of attempted oral copulation, torture, and use of a deadly weapon. Here he appeals the district court’s denial of his habeas corpus petition challenging his guilty plea and capital sentence for murder. Appellant alleges trial counsel rendered ineffective assistance by failing to investigate and present mitigating evidence. In his petition he presents opinions from new experts who believe that he was suffering from brain damage at the time of the crime and that this damage should have been apparent when trial counsel conducted his review. The Ninth Circuit held that even assuming all the allegations are true, Appellant cannot prove a Strickland violation, because “[a]n expert’s failure to diagnose a mental condition does not constitute ineffective assistance of counsel, and [a petitioner] has no constitutional guarantee of effective assistance of experts.” Moreover, they distinguish this claim from other cases in which they have held that counsel’s failure to investigate the potential for brain damage constituted ineffective assistance of counsel. There is a difference between wholly failing to investigate the potential defenses or provide experts with the information necessary to evaluate the petitioner’s alleged brain damage and later disagreement by other experts as to the conclusions of trial experts. Here, defense counsel made a strategic decision to not place Appellant’s mental state in play to avoid the introduction of aggravating evidence. Such a strategic decision is accorded a high level of deference by reviewing courts. In sum, the district court properly concluded based on the record that summary judgment was appropriate on Appellant’s claim that his counsel was ineffective for failing to investigate and present mitigating evidence.

Brain Dysfunction, IAC, Failure to Investigate
State v. Herring, 2011 WL 497765 (Ohio App. 2011)
Defendant-appellant appeals from judgment denying his petition for postconviction relief. The court granted his petition for post-conviction relief and reversed his death sentence. Appellant was convicted of three counts of complicity to commit aggravated murder, two counts of attempted aggravated murder, two counts of aggravated robbery, and six firearm specifications by a jury who recommended that he be sentence to death. The trial court sentenced appellant to death and the Ohio Supreme Court affirmed the convictions and death sentences. On appeal, appellant argued in part that the trial court erred in dismissing his postconviction petition because he presented sufficient evidence to warrant an evidentiary hearing. The main issue he alleged was ineffective assistance of trial counsel because they only presented two witnesses at his mitigation hearing, his mother and his sister, and they should have secured his neuropsychological evaluation and presented corresponding expert testimony as mitigation evidence. The case was remanded for an evidentiary hearing, and the trial court denied postconviction relief. On appeal, this court held that based on his specific IQ and achievement profiles, his history which is suggestive of learning disabilities, and his chronic and early on set [sic] substance abuse, a neuropsychological evaluation should have been [sic] conducted to establish whether [Appellant] suffers from organic brain impairment. Such an evaluation should have been conducted along with a general psychological evaluation at the time of the trial. These areas of 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. Trial counsel did not have this information before them when they made the decision to present only positive mitigation evidence, so trial counsel did not decide to present one theory of mitigation over another. Instead, there was no reasonable decision about what mitigation theories to pursue given they did not have the information they needed to make such a decision. Based on the foregoing, the trial court’s decision denying postconviction relief was an abuse of discretion, the appellant’s postconviction petition was granted, and the judgment of the trial court imposing the death sentences was reversed.

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