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The Daily Digest, 2/28/11

The week starts off with two failed brain damage/mitigation/capital cases. The first case is failure of mitigation at the trial level, and the second is a reversal of a successful PCRA claim.

Neurological evidence is now introduced as mitigating evidence in many capital cases. The general claim goes something like: Don’t blame me, blame my bad brain. The idea is to differentiate bad choices or bad character from something outside of the defendant’s conscious control. The first case is typical of these claims.

The second case arises with a more unusual procedural posture. As I’ve mentioned in previous posts, claims of ineffective assistance of counsel that are cumulative in nature–trial counsel investigated mental health issues but didn’t introduce enough such evidence or specific evidence of brain damage–most often fail. Only when defense counsel completely fails to investigate what should have been obvious indications of brain damage, do defendants prevail on IAC/brain damage claims. In this case the PCRA court had granted relief but the Pennsylvania Supreme Court reverses, finding the brain-damage evidence to be cumulative of an already adequate mitigating evidence investigation.

Brain Damage, Mitigation, Capital Sentencing
People v. Lee, 2011 WL 651850 (Cal. 2011)
Defendant was convicted of first-degree murder with personal use of a firearm. The jury found as a special circumstance that the murder was committed during the commission of an attempted rape. During the penalty phase of the trial, the Defendant introduced as mitigation evidence that his mother drank alcohol and took prescription drugs, including valium, while pregnant with defendant. Also that Defendant was born with the umbilical cord wrapped around his neck. The cord temporarily stopped the flow of oxygen to his brain. When defendant was a child, he suffered two serious head injuries, once when he fell from a moving car and once when another boy hit him in the head with a golf club. An expert in clinical psychology administered neuropsychological tests to defendant. He concluded defendant suffers from brain damage in three separate areas; that such damage can cause problems with learning, sequential processing, following instructions, and controlling anger; and that alcohol consumption exacerbates the effects of the damage. He noted defendant’s brain damage could have been caused by head injuries and by prenatal drug or alcohol exposure. The expert opined that conduct disorder was not a proper diagnosis because defendant’s behavior problems and inability to learn from experience resulted from brain damage, not choice. After the penalty trial, the jury returned a verdict of death. In this automatic appeal, the California Supreme Court affirmed the judgment.

Brain Damage, IAC, Mitigation, Cumulative Evidence
Com. v. Lesko, 2011 WL 652763 (Pa. 2011)
In these consolidated capital post-conviction cross-appeals, the Commonwealth challenges the order of the County Court of Common Please awarding the Defendant a new trial and penalty hearing under the Post Conviction Relief Act (“PCRA”). Defendant prevailed on a PCRA claim of ineffective assistance of counsel for failing to retain a neuropsychological evaluation that would have revealed his organic brain damage. Defense counsel retained a clinical psychologist rather than a neuropsychologist to evaluate the Defendant three days before the resentencing trial commenced, although counsel had been apprised of the link between childhood abuse and organic brain damage, and did not pursue it. The psychological evaluation was not designed to detect either cognitive or organic brain dysfunction. The neuropsychological report presented to the PCRA court found the Defendant to be brain damaged now and at the time of the homicide. The PCRA court granted the Defendant relief, concluding that, “the testimony of a neuropsychologist at the sentencing hearing with regard to [Defendant’s] organic brain damage would have added significant additional and relevant information for the jury to consider as it weighed mitigating factors against the aggravating factors.” On appeal, the Supreme Court of Pennsylvania reversed the order of the PCRA court, granting Defendant a new trial and a new penalty hearing, and dismissed the petition for PCRA relief. It found neither ineffective assistance of counsel, nor any prejudice to the Defendant from failing to have neuropsychological evidence presented on his behalf. “This is not an instance where counsel failed to conduct any investigation and presented limited mitigating evidence, instead, counsel undertook what was ultimately deemed a reasonable investigation and presented a partly successful case in mitigation.” Related mitigating evidence had been presented at trial and together with the significant aggravating evidence the court likewise found no prejudice to the sentencing outcome.

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